Chattisgarh High Court
Hemanand Patel vs State Of Chhattisgarh on 9 April, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 16.2.2021
Judgement delivered on 09/4/2021
WA No. 34 of 2020
(Arising out of order dated 29.11.2019 passed by learned Single
Judge in WPC No.52/2018)
1. Hemanand Patel S/o Parmanand Patel Aged About 36 Years
R/o Village Kodkel, Post Office Milupara, Police Station /
Tehsil Tamnar, District - Raigarh, Chhattisgarh.
2. Tirthanand Patel, S/o Parmanand Patel, Aged About 34 Years
R/o Village Kodkel, Post Office Milupara, Police Station -
Tehsil Tamnar, District - Raigarh Chhattisgarh.
---- Appellants
Versus
1. State of Chhattisgarh Through Secretary, Department Of
Revenue & Disaster Management, Mantralaya, Naya Raipur
Chhattisgarh.
2. Secretary, Department Of Mineral Resources, Mantralaya,
Naya Raipur Chhattisgarh.
3. Collector, District Raigarh Chhattisgarh.
4. Sub Divisional Officer, (Revenue) Gharghoda, District Raigarh
Chhattisgarh.
5. The Superintendent Of Police, District Raigarh Chhattisgarh.
6. Hindalco Industries Ltd., Through Its Manager, Gare Palma
Coal Block, Village Kodkel, Tamnar Block, District Raigarh
Chhattisgarh.
7. Jayaswal Neco Industries Limited, Through Its Director,
Having Registered Office At F - 8 M I D C Industrial Area
Hingna Road, Nagpur, Maharashtra.
---- Respondents
WA No. 70 of 2020
(Arising out of order dated 29.11.2019 passed by learned Single
Judge in WPC No.801/2018)
1. Mohitram S/o Jidhan Patel Aged About 58 Years Resident Of
Village Kodkel, Post Office Milupara, Police Station/tehsil
Tamnar, District Raigarh, Chhattisgarh.
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2. Chaitram Patel S/o Jidhan Patel Aged About 56 Years
Resident Of Village Kodkel, Post Office Milupara, Police
Station/tehsil Tamnar, District Raigarh, Chhattisgarh.
---- Appellants
Versus
1. State of Chhattisgarh Through- Secretary, Department of
Revenue And Disaster Management, Mantralaya, Naya Raipur
Chhattisgarh
2. Secretary Department of Mineral Resources, Mantralaya,
Naya Raipur Chhattisgarh
3. Collector District Raigarh Chhattisgarh.
4. Sub Divisional Officer (Revenue) Gharghoda, District Raigarh
Chhattisgarh.
5. The Superintendent Of Police District Raigarh Chhattisgarh.
6. Hindalco Industries Ltd. Through Its Manager, Gare Palma
Coal Block, Village Kodkel, Tamnar Block, District Raigarh
Chhattisgarh.
7. Jayaswal Neco Industries Limited Through- Its Director,
Having Registered Office At F-8 Midc Industrial Area Hingna
Road, Nagpur, Maharashtra.
---- Respondents
WA No. 161 of 2020
(Arising out of order dated 29.11.2019 passed by learned Single
Judge in WPC No.966/2018)
1. Hariram S/o Rupmohan Aged About 71 Years R/o Village
Kodkel, Tahsil Tamnar, District Raigarh Chhattisgarh.
2. Balakram Patel (Since Deceased) Through Lrs.
2.1 - (A). Champavati Wd/o Balakram Patel Aged About 66
Years R/o Village Kodkel, Tahsil Tamnar, District Raigarh
Chhattisgarh.
2.2 - (B). Manoj Kumar Patel S/o Balakram Patel Aged About
40 Years R/o Village Kodkel, Tahsil Tamnar, District
Raigarh Chhattisgarh.
2.3 - (C). Rohit Kumar Patel S/o Balakram Patel Aged About
37 Years R/o Village Kodkel, Tahsil Tamnar, District
Raigarh Chhattisgarh.
3. Hemnath Patel S/o Rupmohan Aged About 52 Years R/o
Village Kodkel, Tahsil Tamnar, District Raigarh Chhattisgarh.
4. Manbodh S/o Ramprasad Aged About 70 Years R/o Village
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Kodkel, Tahsil Tamnar, District Raigarh Chhattisgarh.
5. Parmanand S/o Ramprasad Aged About 66 Years R/o Village
Kodkel, Tahsil Tamnar, District Raigarh Chhattisgarh.
6. Dinbandhu Patel S/o Tikait Aged About 72 Years R/o Village -
Kodkel, Tahsil Tamnar, District Raigarh Chhattisgarh.
7. Leelamber S/o Dileshwar Patel Aged About 32 Years R/o
Village - Kodkel, Tahsil Tamnar, District Raigarh Chhattisgarh.
---- Appellants
Versus
1. State of Chhattisgarh Through The Secretary, Department Of
Revenue And Disastar Management, New Mantralaya,
Mahanadi Bhawan, New Raipur Chhattisgarh.
2. Collector Raigarh (CG).
3. Sub Divisional Officer (R) Gharghoda, District Raigarh
4. Tahsildar Tamnar, District Raigarh Chhattisgarh.
5. M/s Hindalco Limited Through Its Managing Director, Having
Office At Block 4/5, Miluparra Coal Mine, Tamnar, Near Jindal
Power Plant, Raigarh Chhattisgarh.
---- Respondents
W.A. No.34/2020 & 70/2020
For Appellants : Mrs. Rajni Soren, Advocate
For Respondent No.1 to 4 : Mr. Vikram Sharma, Deputy
Government Advocate
For Respondent No.6 : Mr. Ashish Prasad, Mr. Rohit
Sharma, Mr. BD Guru & Mr.
Anuroop Panda, Advocates
W.A. No.161/2020
For Appellants : Miss Sharmila Singhai & Mr.
Sanjay Agrawal, Advocates
For Respondent No.1 to 4 : Mr. Vikram Sharma, Deputy
Government Advocate
For Respondent No.5 : Mr. Ashish Prasad, Mr. Rohit
Sharma, Mr. BD Guru & Mr.
Anuroop Panda, Advocates
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Hon'ble Shri PR Ramachandra Menon,CJ
Hon'ble Shri Parth Prateem Sahu, J
C A V Order
Per Parth Prateem Sahu, J;
1. Correctness and sustainability of the order dated 29.11.2019
passed by the learned Single Judge dismissing writ petitions
preferred by the petitioners/appellants herein, is put to
challenge in the above writ appeals.
2. As the above three writ appeals arise out of the common order
dated 29.11.2019, therefore, the same were heard together
and are being disposed of by this common order.
3. Facts
relevant for disposal of these appeals are that
petitioners/appellants are the owners of lands bearing different
khasra numbers situated in village Kodkel, Tahsil Tamnaar,
District Raigarh. On 29.3.2006 the State Government granted
mining lease in favour of 7 th respondent M/s Jayaswal Neco
Industries Ltd. for 'Gare Palma Coal Block No.IV/4, Raigarh'
and entered into an agreement on 13.4.2006. Pursuant to
execution of mining lease agreement, the 7th respondent had
approached the Collector, Raigarh for grant of 'Surface Rights'
by making application dated 15.9.2007 (Annexure P-2 to WPC
No.966/2018). On making said application, the Collector,
Raigarh vide letter dated 27.4.2011 directed respondent Sub-
Divisional Officer (Revenue), Gharghoda to initiate
proceedings for grant of surface rights in favour of the 7 th
respondent M/s Jayaswal Neco Industries Ltd. The Competent
Authority granted surface rights after passing an order on
19.4.2012 fixing compensation. The 7th respondent after
depositing the calculated amount of compensation started
mining activities. One public interest litigation bearing WP (Crl)
No.120/2012, parties being Manohar Lal Sharma vs. Principal
Secretary & ors, was filed before Hon'ble Supreme Court
challenging the procedure for allotment of coal blocks. The
said petition came to be decided on 24.9.2014 cancelling
allocations of coal blocks including the subject coal block,
except specified therein. The Central Government thereafter
again initiated proceedings of auction in which 6 th respondent
became successful being highest bidder for the subject coal
block and all the formalities were completed in the year 2015
and it started its work. The petitioners thereafter have
approached the High Court by filing writ petitions seeking for
following reliefs:-
"i.To kindly call for the records of the case
no.06/A67/2010-11 from the respondent no.3
ii. To kindly quash the impugned proceedings of Surface
Right Case No.06/A-67/2010-11 (Annexure P/1)
iii. To kindly direct the respondents to act in accordance
with law prior to taking possession of the lands of the
petitioners.
iv. To kindly make any other order that may be deemed
fit and just in the facts and circumstances of the case
including awarding of the costs to the petitioner."
Main contention of petitioners along with others is that
respondent No.4-SDO though initiated proceedings but not
complied with the provisions under Section 247 (3) of the
Chhattisgarh Land Revenue Code, 1959 (for short 'the Code of
1959'). Petitioners/appellants have not been given notice
before granting surface right and thereby they have been
deprived from their right to raise objection and hearing prior to
passing of the order dated 19.4.2012 fixing the amount of
compensation under Section 247 (4) of the Code of 1959.
4. Respondent Nos.1 to 4 - State filed reply to writ petition
pleading that the order dated 19.4.2012 is challenged after
lapse of long delay. Petitioners have not offered any
explanation in Para-7 of writ petition except mentioning that
there is no delay in filing writ petition. They are fence sitters
who have not approached the Court in time. Instead of
approaching the Competent Authority as prescribed under the
Statute itself, the petitioners have directly approached the
Court after inordinate delay. Respondent SDO in compliance
of the provisions of Section 247 of the Code of 1959 had
issued proclamation on 2.5.2011 with respect to grant of
Surface Right to the applicant-company and called objections
from the land holders till 23.5.2011. No objection was raised
before the respondent SDO, a meeting of Gram Sabha was
convened on 7.7.2011 in which, issue with respect to grant of
Surface Right to 7th respondent Jayaswal Neco was discussed
and concluded with an agreement that the company may go
ahead. 4th Respondent taking into consideration the
proceedings of Gram Sabha has assessed the amount of
compensation and directed 7th respondent M/s Jayaswal Neco
Industries Ltd. to deposit Rs.37,81,96,830/- and service
charge with the Collector/Land Acquisition Officer, Raigarh.
The 7th Respondent M/s Jayaswal Neco Industries Ltd. has
deposited the amount as calculated by respondent No.4-SDO
and after obtaining necessary permission and sanction started
its activities. In pursuance of the order passed by the Hon'ble
Supreme Court in case of Manohar Lal Sharma vs. Principal
Secretary & ors, WP (Crl) No.120/2012, the subject coal block
was reallocated to respondent M/s Hindalco Industries Ltd.
and the authority concerned vide order dated 23.3.2015
ordered for vesting of 'Gare Palma Coal Block IV-4, Raigarh' in
favour of respondent M/s Hindalco Industries Ltd. After vesting
of rights in the subject coal block, the respondent No.4 passed
necessary orders on 3.8.2015 whereby Surface Right over the
subject area has been granted to respondent M/s Hindalco
Industries Ltd. Majority of land owners of village Kodkel have
accepted the compensation against acquisition.
5. 6th Respondent M/s Hindalco Industries Ltd. filed its reply to
writ petition stating therein that prior allottee i.e. respondent
M/s Jayaswal Neco Industries Ltd. had deposited the entire
amount of compensation with the respondent State
authorities. Amount of compensation was deposited in the
year 2013-14 by the prior allottee, whereas the petition has
been filed in the year 2018, as such, the petition suffers from
delay. Respondent M/s Hindalco Industries Ltd. under the Coal
Mines (Special Provisions) Act, 2015 (henceforth 'the Act of
2015') has been vested with right, title and interest in and over
the land and mine infrastructure together with mining leases.
After the allotment of subject coal block and passing of the
order of vesting of rights, on 24.7.2015 mining lease in respect
of 'Gare Palma IV/4' was issued in favour of respondent M/s
Hindalco Industries Ltd. and consequently mining lease
agreement was executed on 16.10.2015. The Competent
Authority on 3.12.2015 has granted permission to the
respondent company to enter and occupy surface of leased
area and to commence mining. Petitioners have suppressed
the fact that respondent No.4-SDO following the procedure
prescribed has issued proclamation, meeting of Gram Sabha
was convened and that, the amount of compensation was
deposited by the prior allottee. The compensation was
calculated for the lands and the trees standing thereon. One
of the petitioners in WPC No.265/2015 has withdrawn the
amount of compensation. Surface Right was granted to the
prior allottee in respect of subject coal block for open cast
mines.
6. Rejoinder was filed by the petitioners to the effect that the
petitioners were not served with the notice, they got
knowledge only when respondent Hindalco started its
activities. Hence, it cannot be said that there is delay in filing
writ petition. Alternative remedy cannot restrict the Court for
exercising its jurisdiction under Article 226 of the Constitution
of India. Proceedings of Gram Sabha are concocted one and
outcome of an afterthought.
7. Learned Single Judge upon hearing learned counsel for both
sides, considering the provisions under Section 247 (3) of the
Code of 1959, issuance of proclamation by respondent No.4-
SDO and holding of Gram Sabha on 7.7.2011, held that it was
hard to believe that that the petitioners were not aware about
the decision of the State Government of granting surface right
to 7th respondent Jayaswal Neco Industries. Taking into
consideration the judgment passed by a Division Bench of
Madhya Pradesh High Court in case of Shyam Bihari Singh
vs. Premchand reported in 2008 (4) MPHT 151, the learned
Single Judge dismissed writ petitions inter alia on the ground
of delay.
8. Miss Sharmila Singhai, learned counsel for appellants in WA
No.161/2020 submits that the learned Single Judge while
considering the grounds raised in writ petition has completely
overlooked the provisions of Section 247 of the Code of 1959.
Respondent No.4-SDO has not complied with mandatory
procedure prescribed under sub-section (3) of Section 247 of
the Code of 1959. Petitioners have not received notice as
envisaged under Section 247 (3) of the Code of 1959 and as a
result they have been deprived from their right to raise
objection to be considered by the Competent Authority. There
was an obligation upon the respondent No.4 SDO to issue
personal notice prior to granting surface right of land
belonging to appellants. She further submits that consent of
private land owners is must before grant of surface right to
allottee. Referring to the provisions under Section 247 (3) of
the Code of 1959, she submits that prior consent of the land
owners is mandatory for starting mining operations in the area.
For the purpose of grant of mining lease, personal notice, as
envisaged under Section 247 (3) of the Code of 1959 is not
necessary but for grant of surface right the notice is
necessary. She submits that even it is accepted that the
proceedings were drawn for grant of surface right to
respondent Jayaswal Neco, but no proceeding has been
drawn by the Competent Authority for granting surface right to
respondent Hindalco. Referring to the proceedings dated
3.8.2015, she submits that no notice has been issued to
appellants by respondent No.4 before passing order on
3.8.2015. In the information supplied under the Right to
Information Act, 2005 by the Public Information Officer, copy of
proclamation was not available. Gram Sabha was also not
convened. Upon confronting with presence of petitioner
Chaitram Patel in Gram Sabha meeting, she submits that
Gram Sabha was not conducted in accordance with law. It is
further contended that the Collector is having obligation to
ensure proper compensation. She submits that the impugned
order is liable to be interdicted.
9. Mrs. Rajni Soren, learned counsel for appellants in WA
Nos.34/2020 & 70/2020 while supporting the arguments
advanced by Miss Sharmila Singhai, learned counsel for
appellants in WA No.161/2020, urged that sub-section (4) of
Section 247 of the Code of 1959 is not restricted upto
compensation but also provides for filing of objection to grant
of surface right. She submits that under the provisions of
Section 247 of the Code of 1959, calling for objection and its
decision is mandatory. She further submits that by virtue of
interim order, the appellants are in possession of their
respective lands. Appellants came to know when respondent
Company started activities over the subject lands and
immediately thereafter appellants have preferred writ petitions.
10. Mr. Vikram Sharma, learned Deputy Government Advocate for
the State submits that the notice as required to be sent is only
with respect to fixing of proper compensation and not for
consent of the use of land surface. There is no provision
under the Mines & Minerals (Development and Regulation)
Act, 1959 (for short 'the Act of 1957') to give prior notice for
obtaining consent of the land owners. Referring to Section 10
of the Act of 1957, he submits that after receiving application
for prospecting license, the State Government may grant or
refuse to grant the application. He further submits that under
Rule 72 of the Mineral Concessions Rules of 1960 (for short
'the Rules of 1960') the holder of permit or prospecting license
shall be liable to pay to the occupier of surface of land the
compensation as may be determined by the officer appointed
by the State Government. It also prescribes for grant / award
of compensation and it does not mention about prior consent
of the land owners. To support his contention, he places his
reliance on the judgment in case of Ramchandra Badri
Prasad Gour & ors vs. Associated Cement Co. Ltd. & ors
reported in 1989 MPLJ 265. He further submits that main
contention raised by the petitioners/appellants is with regard
to non-compliance of the provisions contained in sub-section
(3) of Section 247 of the Code of 1959 i.e. of not giving
personal notice. He submits that the provisions under Section
247 (3) of the Code of 1959 are to be read along with
provisions of Section 247 (4) of the Code of 1959 wherein
payment of compensation is provided to the persons whose
rights have been infringed. He also submits that the
Competent Authority for calculating the quantum of
compensation is the Sub-Divisional Officer (Revenue) and
further remedy is also provided if the award is not accepted
i.e. ascertainment by civil Court. Respondent authorities have
drawn proceedings in accordance with law, proclamation was
issued by respondent No.4-SDO specifically mentioning for
use of surface right. Gram Sabha has been conducted
wherein the owners of land/villagers have deliberated the
issue of grant of surface right to the prior allottee and
thereafter the respondent SDO calculated the amount of
compensation and order was passed on 19.4.2012. He further
submits that the State Government is having exclusive right
over the minerals, hence contention of appellants that prior
notice for taking consent is necessary is not correct. He
submits that under the provisions of Section 247 (3) of the
Code of 1959 the word used is 'assigned'. The State
Government has assigned the right over minerals beneath the
land and thereafter the competent authority has also
calculated the amount of compensation, which has been
deposited by the allottee. Most of the land owners have
accepted the compensation except the appellants but the
appellants have not taken the same.
11. Mr. Ashish Prasad, learned counsel for respondent Hindalco
Industries would argue that the Government is having right to
all mines and minerals under the provisions of law. After the
grant of mining lease, the surface right is to be granted. It is
for the State Government to draw proceeding to get private
lands acquired. Proceedings for acquisition of lands are to fix
compensation by the Competent Authority to compensate the
land holders. Right over the land is acquired as soon soon
amount of compensation calculated is deposited. Respondent
No.6 has been granted lease and rights of surface area being
the successful bidder under the Act of 2015. Referring to
Section 8 of the Act of 2015 it is argued that this Section is
having overriding effect. Under the Act of 2015 the successful
bidder has been granted right to continue with the mining
operations. Total area of coal block is 174.610 hectare, out of
which most of the land holders have accepted the amount of
compensation. He submits that in pursuance of the order
passed by Hon'ble Supreme Court in Manohar Lal Sharma's
case (supra), the Act of 2015 has been enacted with a
purpose to ensure continuity of mines. The Central
Government through the Nominated Agency had conducted
an auction process in which respondent Hindalco Industries
has become successful and as per provisions of Section 8 (4)
of the Act of 2015, the rights, interest and title of the prior
allottee has been vested with respondent Hindalco. Referring
to definition of 'prior allottee' given in Section 2 (n) of the Act of
2015 he submits that in instant case respondent Jayaswal
Neco Industries was 'prior allotee', who has been earlier
granted lease rights and land surface right over the subject
land/coal block. Lease granted to prior allottee at no point of
time was cancelled. Respondent Hindalco Industries has
been granted continuing rights under the Act of 2015 from the
prior allottee. He submits that if for any reason petitioners/
appellants are aggrieved with the quantum of compensation,
then the remedy lies under Section 247 (4) of the Code of
1959. The Act of 2015 has not taken away the right of getting
fair compensation. The provisions of Section 247 (3) of the
Code of 1959 are not applicable. Right to object, as provided
to the land owners, is only for limited purpose. The entire
proceedings cannot be set aside, however, the petitioners/
appellants can approach the appropriate authority challenging
the quantum of compensation, if at all they are dissatisfied
with it. It is submitted that the petitions suffer from delay and
laches and the same are liable to be dismissed on this count
only. In support of his submissions, learned counsel has
placed reliance on the decisions in case of Rambheja vs.
Newton Chikhili Collieries Pvt. Ltd. reported in 1972 MPLJ
151; Aparn Gramin Vikas Sanstha Samiti Society vs. State
of MP reported in (2013) 3 MPLJ 74; Premchand
Sugnichand & ors Vs. State of MP reported in AIR 1965 MP
191; Shyam Bihari Singh & ors Vs. The State of MP & ors
reported in (2008) 4 MPLJ 255; May George vs. Special
Tehsildar & ors reported in (2010) 13 SCC 98; Sawaran Lata
& ors vs. State of Haryana & ors reported in (2010) 4 SCC
532;
12. Miss Singhai, learned counsel for appellants in WA
No.161/2020 submits that argument advanced on behalf of
the respondents are based on the Act of 2015 which talks
about re-allotment. Even if the rights have been assigned to
respondent Jayaswal Neco then also the procedure is to be
followed by issuing notice under sub-section (3) of Section
247 of the Code of 1959. She would further submit that the
Act of 2015 talks about the prior allottee and respondent
Hindalco Industries is not the prior allottee.
13. Mrs. Soren submits that there was no proclamation and
several land disputes are pending before the authority
concerned.
14. We have heard learned counsel for the parties and perused
the record.
15. Question involved in these appeals is whether in absence of
personal notice under Section 247 (3) of the Code of 1959 the
entire proceedings for grant of surface right will be vitiated?
16. To better understand the provisions of Section 247 of the
Code of 1959, the same is extracted below for ready
reference:-
"247.Government's title to minerals. - (1) Unless it is
otherwise expressly provided by the terms of a grant
made by the Government, the right to all minerals,
mines and quarters shall vest in the State Government
which shall have all powers necessary for the proper
enjoyment of such rights.
(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 purpose subsidiary
thereto, including the erection of offices, workmen's
dwellings and machinery, the stacking of minerals
and deposit of refuse, the construction of roads,
railways or tram-lines, and any other purposes
which the State Government may declare to be
subsidiary to mining and quarrying.
(3) If the Government 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, and the
Collector may, by an order in writing, subject to
such conditions and reservations as he may
specify, 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 affected, 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 person are infringed by
the occupation or disturbance of the surface of
such land, the Government or its assignee shall
pay to such persons compensation for such
infringement and the amount of such compensation
shall be calculated by the Sub-Divisional Officer or,
if his award is not accepted, by the Civil Court, as
nearly as may be, in accordance with the
provisions of the Land Acquisition Act, 1894 (I of
1984).
(5) No assignee of the Government shall enter on or
occupy the surface of any land without the previous
sanction of the Collector, and unless the
compensation has been determined and tendered
to the persons whose rights are infringed.
(6) If an assignee of the Government fails to pay
compensation as provided in sub-section (4), the
Collector may recover such compensation from him
on behalf of the persons entitled to it, as if it were
an arrears 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 Government shall, without prejudice to any
other action that may be taken against him be
liable, on the order in writing of the Collector, to pay
penalty not exceeding a sum calculated at double
the market value 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.
(8) Without prejudice to the provisions in sub-section
(7) the Collector may seize and confiscate any
mineral extracted or removed from any mine or
quarry the right to which vests in, and has not been
assigned by the Government."
17. A bare perusal of sub-sections (1) & (2) of Section 247 of the
Code of 1959 would reveal that the State Government is
having all the powers for proper enjoyment of rights to all
minerals, mines and quarries and the right to mines and
quarries includes right to access to the land for the purpose of
mining. Section 247 (3) of the Code of 1959 envisages the
power of delegation of right over the mines and minerals of
the State Government to other's subject to conditions and
reservations and assigned the rights. Under the proviso to
sub-section (3) it is mentioned that before delegation of rights,
notice to be duly served on all persons having right in the land
affected. Sub-section (4) of Section 247 of the Code of 1959
envisages for granting compensation to the persons whose
rights have been infringed in exercising the right referred in
sub-sections (1), (2) & (3) of Section 247 of the Code of 1959.
It is not in dispute that the proceedings were drawn by
respondent SDO on 2.5.2011 for grant of surface right and
fixation of compensation. Respondent SDO in its order has
specifically mentioned for issuance of proclamation for the
purpose of fixation of compensation and the order was passed
fixing amount of compensation of land, trees standing thereon
etc. at Rs.34,38,15,300/- on 19.4.2012 and after deposit of the
said amount, the surface right has been granted to respondent
Jayaswal Neco Industries, who also started its activities.
18. Perusal of Section 247 of the Code of 1959 would show that at
first it clarifies that the Government is title holder of all
minerals and it vests all powers for its enjoyment including
right to access the land for the purpose of mining. The
Government can assign its right to any person and delegate
such powers subject to condition. If the right of owner of land
surface is infringed, he is entitled for compensation under
Section 247 (4). The purpose of Section 247 (3) is to be
understood with conjoint reading of the provisions under sub-
section (4) of Section 247 of the Code of 1959. Once the
government assigned its right to any person and delegates
such power, then the owner of land cannot object assignment
of its right to that person but for claiming proper
compensation. Under Section 247 (5) of the Code of 1959
pre-conditions of entering or occupying the surface of land are
provided protecting interest of the persons having rights on
such land. For entering and occupying the surface of the land
assigned to any person, it is obligatory upon the government
to determine the compensation and tender to such person.
Meaning thereby, after determining the compensation the
assignee of the rights by the government has to deposit the
same for its disbursement. The provisions of the Statute are
to read as a whole and interpretation is to be purposive so that
the object of very provision under the Statute is achieved. The
Sub-Divisional Officer while drawing the proceedings for
fixation of compensation had issued proclamation to the
concerned villagers, Gram Sabha was convened, proceedings
were recorded, villagers including one of appellants Chaitram
was present, details of land were called from the Patwari
(Revenue Officer) mentioning the purpose of computing
compensation, as appearing from Annexure P-1. The
submission of learned counsel for appellants appears to be
correct that personal notice was not issued as is evident from
the proceedings of the SDO. In the above facts of the case
and the provisions, whether in absence of notice under
Section 247 (3) of the Code of 1959 the entire proceedings
can be declared to be vitiated, particularly when from the
provision itself it is appearing that purpose of notice is to fix
the compensation only.
19. In case of May George (supra), the Hon'ble Supreme Court
while dealing with proceedings under the Land Acquisition Act
has considered the provisions of Section 9 with regard to
service of notice to persons affected for raising claim and
objection and held as under:-
"13. Section 9 (3) of the Act reads as under :-
"The Collector shall also serve notice to the
same effect on the occupier (if any) of such
land and on all such persons known or
believed to be interested therein, or to be
entitled to act for persons so interested, as
reside or have agents authorized to s reside
or have agents authorized to receive service
on their behalf, within the revenue district in
which the land is situate"
14. Section 9 (3) of the Act provides for an
opportunity to the "person interested" to file a claim
petition with documentary evidence for determining
the market value of the land and in case a person
does not file a claim under Section 9 even after
receiving the notice, he still has a right to make an
application for making a reference under Section 18
of the Act. Therefore, scheme of the Act is such that
it does not cause any prejudicial consequence in
case the notice under Section 9 (3) is not served
upon the person interested.
15. While determining whether a provision is
mandatory or directory, in addition to the language
used therein, the Court has to examine the context
in which the provision is used and the purpose it
seeks to achieve. It may also be necessary to find
out the intent of the legislature for enacting it and
the serious and general inconveniences or injustice
to persons relating thereto from its application. The
provision is mandatory if it is passed for the purpose
of enabling the doing of something and prescribes
the formalities for doing certain things.
15. In Dattatraya Moreshwar Vs. State of Bombay 2,
this Court observed that law which creates public
duties is directory but if it confers private rights it is
mandatory. Relevant passage from this judgment is
quoted below: (AIR p. 185, para 7)-
"7.....It is well settled that generally
speaking the provisions of the statute
creating public duties are directory and
those conferring private rights are
imperative. When the provision of a statute
relate to the performance of a public duty
and the case is such that to hold null and
void acts done in neglect of this duty would
work serious general inconvenience or
injustice to persons who have no control
over those entrusted with the duty and at
the same time would not promote the main
object of legislature, it has been the
practice of the Courts to hold such
provisions to be directory only the neglect
of them not affecting the validity of the acts
done."
25. The law on this issue can be summarised to the
effect that in order to declare a provision mandatory,
the test to be applied is as to whether non-
compliance of the provision could render entire
proceedings invalid or not. Whether the provision is
mandatory or directory, depends upon the intent of
Legislature and not upon the language for which the
intent is clothed. The issue is to be examined
having regard to the context, subject matter and
object of the statutory provisions in question. The
Court may find out as what would be the
consequence which would flow from construing it in
one way or the other and as to whether the Statute
provides for a contingency of the non-compliance of
the provisions and as to whether the non-
compliance is visited by small penalty or serious
consequence would flow therefrom and as to
whether a particular interpretation would defeat or
frustrate the legislation and if the provision is
mandatory, the act done in breach thereof will be
invalid.
28. In fact, the land vest in the State free from all
encumbrances when possession is taken under
section 16 of the Act. Once land is vested in the
State, it cannot be divested even if there has been
some irregularity in the acquisition proceedings. In
spite of the fact that Section 9 Notice had not been
served upon the person- interested, he could still
claim the compensation and ask for making the
reference under section 18 of the Act. There is
nothing in the Act to show that non-compliance
thereof will be fatal or visit any penalty."
20. The ground raised in these appeals is somewhat identical to
what has been considered by Hon'ble Supreme Court in case
of May George (supra). In the case at hand also the ground is
'non-service of notice in person'. Under the Code of 1959
there is forum prescribed for raising the dispute challenging
the quantum of compensation if dissatisfied. Even under the
Act of 1957 and the Rules of 1960 the occupier or owner of
surface of land is having the right for compensation from the
person in whose favour license, lease or right is granted
before they enter into the land allotted and start mining
operations over it.
21. In view of above, in the opinion of this Court the submission of
learned counsel for petitioners/appellants that in absence of
proper personal notice under Section 247 (3) of the Code of
1959, grant of surface rights is to be quashed is not
sustainable and is hereby repelled.
22. Another submission raised by learned counsel for appellants
that no proceeding has been drawn for grant of surface right
to respondent Hindalco Industries is concerned, the surface
right to respondent Hindalco has been granted under the Act
of 2015. The Act of 2015 has been enacted for providing
allocation of coal mines and vesting of right, title and interest
in and over the land with mining lease to successful bidder
and to ensure continuity in coal mining operations. This Act
has been enacted for taking immediate action to implement
the order passed by the Hon'ble Supreme Court. Clause-7 of
the Statement of Object and Reasons of the Act of 2015 is
extracted below for ready reference:-
"7. The Coal Mines (Special Provisions) Bill, 2015
provides for allocation of coal mines and vesting of
the right, title and interest in and over the land and
mine infrastructure together with mining lease to
successful bidders and allottees through a
transparent bidding process with a view to ensure
continuity in coal mining operations and production of
coal, and for promoting optimum utilisation of coal
resources consistent with the requirement of the
country in national interest. Further, the Bill, having
regard to the coordinated and scientific development
and utilisation of coal resources consistent with the
growing requirement of the country, prescribed the
condition to rationalise the coal sector for mining
operations, consumption and sale."
23. It is not in dispute that in pursuance of the Act of 2015 the
allotment order has been issued in favour of 6 th respondent;
an agreement was entered between the 6th respondent and
the State Government and subsequent to which, the surface
right has been granted on 3.8.2015 by making amendment on
surface right already granted to 7th respondent. The 6th
respondent has been granted surface right based on the
proceedings drawn under the Act of 2015 after its becoming
successful under the provisions of Section 8 of the Act of
2015. Section 8 (4) of the Act of 2015 envisages that vesting
order shall transfer and vest upon the successful bidder all the
rights, title and interest of the prior allottee in Schedule I coal
mine. Section 8 (4) & (5) of the Act of 2015 are extracted
below:-
"(4) The vesting order shall transfer and vest upon the
successful bidder, the following, namely:-
(a) all the rights, title and interest of the prior
allottee, in Schedule I coal mine concerned with the
relevant auction;
(b) entitlement to [prospecting licence, mining lease
or prospecting licence-cum-mining lease, as the
case may be] to be granted by the State
Government;
(c) any statutory licence, permit, permission,
approval or consent required to undertake coal
mining operations in Schedule I coal mines if
already issued to the prior allottee;
(d) rights appurtenant to the approved mining plan
of the prior allottee;
(e) any right, entitlement or interest not specifically
covered under clauses (a) to (d).
(5) The nominated authority shall, in consultation with the
Central Government, determine the floor price or reserve
price in accordance with such rules as may be
prescribed."
24. "Prior Allottee" has been defined under Section 2 (n) of the Act
of 2015, which is reproduced below for ready reference:-
"(n) "prior allottee" means prior allottee of Schedule I
coal mines as listed therein who had been allotted coal
mines between 1993 and 31st day of March, 2011,
whose allotments have been cancelled pursuant to the
judgment of the Supreme Court dated the 25 th August,
2014 and its order dated 24th September, 2014
including those allotments which may have been de-
allocated prior to and during the pendency of the Writ
Petition (Criminal) No.120 of 2012."
For the case at hand "prior allottee" is the 7 th respondent, who has
been allotted mining lease of coal block in the year 2006, after
passing of the order dated 19.4.2012, the surface right was
also given. Under the Act of 2015 the allotment is made with
the purpose to continue with the rights, title and interest of the
prior allottee. In this case, 7th respondent has already obtained
surface right and started mining activities, hence 6th
respondent continued with the rights, title and interest which
7th respondent was having on the date of passing of an order
of vesting in favour of successful bidder. Under the scheme of
the Act of 2015 it is the successful bidder to step into shoes
and continue with the proceedings where the prior allottee
stands. Hence, there is no requirement of again initiating and
drawing proceeding for grant of land surface right, as
submitted by learned counsel for the appellants. This
submission of learned counsel for the appellants is contrary to
the provisions of the Act of 2015, hence it is not sustainable
and is hereby repelled.
25. Appellants have not challenged the order passed by the SDO
on 19.4.2012 immediately thereafter. Submission made by
learned counsel for the appellants that they were not aware
about the proceedings of Gram Sabha dated 7.7.2011 cannot
be accepted because the Gram Sabha proceedings available
in the record as Annexure A-2, reveal name of petitioner
Chaitram Patel as one of the signatories. Apart from Chaitram
Patel, there are several villagers who participated in the Gram
Sabha and also signed the proceedings. In view of the above,
it cannot be said that when other villagers were present
including Chaitram Patel, remaining petitioners/appellants
could not get knowledge of the proceedings being drawn by
respondent SDO for grant of surface right. Appellants have
filed writ petitions only in the year 2018, 2019. As the
appellants have approached the Court with inordinate delay,
the submission made by learned counsel for appellants that
the proceedings of Gram Sabha are not in accordance with
law for want of quorum cannot be accepted at this stage. In
case of Swarana Lata (supra) Hon'ble Supreme Court while
considering delay in approaching the Court has held thus:-
"10. Similar view has been reiterated in State of Rajasthan &
Ors. Vs. D.R. Laxmi & Ors., (1996) 6 SCC 445, wherein
this Court has held that even the void proceedings need
not be set at naught if the party has not approached the
Court within reasonable time, as judicial review is not
permissible at a belated stage. This Court held as under:
"......Delay in challenging the notification was fatal
and writ petition entails with dismissal on
grounds of laches. It is thus, well-settled law that
when there is inordinate delay in filing the writ
petition and when all steps taken in the
acquisition proceedings have become final, the
Court should be loathe to quash the
notifications........
10. The order or action, if ultra vires the power,
becomes void and it does not confer any right.
But the action need not necessarily be set at
naught in all events. Though the order may be
void, if the party does not approach the Court
within reasonable time, which is always a
question of fact and have the order invalidated
or acquiesced or waived, the discretion of the
Court has to be exercised in a reasonable
manner. When the discretion has been
conferred on the Court, the Court may in
appropriate case decline to grant the relief, even
if it holds that the order was void. The net result
is that extraordinary jurisdiction of the Court may
not be exercised in such circumstances."
(emphasis added)
Similar view has been reiterated by this Court in
Northern Indian Glass Industries Vs. Jaswant
Singh12, and Haryana State Handloom &
Handicrafts Corporation Ltd. Vs. Jain School
Society13."
In the instant case the Competent Authority issued
proclamation on 2.5.2011 for calling objections om giving
surface rights and fixing compensation. Gram Sabha was
convened on 7.7.2011. The order fixing compensation was
passed on 19.4.2012. The 7th respondent deposited the
amount of compensation and started the work. 6 th respondent
got the continuing rights being successful bidder and
respondent No.4 passed consequent order on 3.8.2015. Writ
petition challenging order dated 19.4.2012 is filed only in the
year 2018 & 2019. In the above facts of the case, we do not
find any infirmity in the finding recorded by the learned Single
Judge that petition is filed with inordinate delay and is to be
dismissed on that count.
26. With regard to submission of learned counsel for appellants
that the Collector is obligated for proper compensation, the
learned Single Judge has already protected rights and interest
of the appellants by recording that dismissal of writ petitions
would not preclude them from approaching the authorities
under the law for compensation of land to each of them and to
seek for enhancement of quantum of compensation, if they are
dissatisfied.
27. For the foregoing reasons, we do not find any infirmity or
illegality in the order impugned passed by the learned Single
Judge. Writ appeals fail and are dismissed.
Sd/- Sd/-
(P.R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
roshan/-
