Anees vs State Of Uttarakhand & Others

Alok Singh, J

Petitioner is challenging the order dated 20.04.2019 whereby Commissioner Garhwal Mandal was pleased to dismiss the appeal of the petitioner thereby confirming the order dated 17.12.2018 passed by District Magistrate, Hardiwar for recovery of Rs. 43,93,200/- against five persons including the petitioner.

Brief facts of the present case inter alia are that on 1.05.2018, one Pankaj Kumar sought permission from the District Magistrate, Haridwar for removal of soil from land bearing Khata No. 22 Khasra No. 504/7 measuring 0.5530 hectare. On 28.06.2018, District Magistrate, Haridwar granted permission to remove 1000 cubic metre soil from the aforesaid land subject to payment of royalty. On 10.08.2018, Revenue Inspector submitted his report to the Tehsildar to the effect that permission was granted only to remove 1000 cubic metre of soil but 8624 cubic metre soil has been removed. Deputy Director, Mining calculated the penalty on aforesaid excess mining. District Magistrate issued order for recovery of Rs. 43,93,200/- against five persons including the petitioner. Petitioner challenged the order of District Magistrate before Commissioner Garhwal Mandal, who dismissed the appeal. Feeling aggrieved, petitioner approached this Court.

Heard Mr. A.K. Sharma, Advocate for the petitioner and Mr. Gajendra Tripathi, Brief Holder for the State of Uttarakhand and perused the record.

Mr. A.K. Sharma, Advocate for the petitioner submits that digging of soil from one's own land would not amount to mining, therefore, the provisions of the Mines and Minerals (Regulation and Development) Act 1957 would not be applicable in the present case. In support of his contention, he has placed reliance on the judgment passed by this Court in Writ Petition No. 832 (MS) of 2013 (THDC India Ltd. Vs. State of Uttarakhand) and other connected petitions decided on 26.05.2014.

In the case of THDC (supra) this Court held as under:

"As per Section 3 (d) of the Act, "mining operations" means any operation undertaken for the purpose of winning of any mineral. As per Section 4 of the Act, if someone wants to undertake mining operations, he is required to obtain mining lease, as mandated by Section 4 of the Act. However, as per Section 21 (5) of the Act, if any person raises any mineral from any land without there being any mining lease or in contravention with the provisions of the Act, then State Government shall be at liberty to recover price of the mineral so raised, rent, royalty or tax as the case may be, from the violator.

The simple meaning of "mining operations" as defined under Section 3 (d) of the Act is that there should be excavation for the purpose of taking out any mineral.

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Even language of Sub Section (5) of Section 21 demonstrates that in the event of raising minerals from the land, State Government may recover cost thereof as well as royalty and tax as the case may be. Raising (taking out) mineral from the earth is sine qua non to attract Section 21 (5) of the Act.

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If digging is made solely for the purpose of construction or raising underground construction without there being any intention to take out minerals therefrom, then it would not 7 amount to excavation of minerals from earth, therefore, shall not fall within the definition of mining operation.

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There is another aspect of the matter. Hon'ble Apex Court in the case of Thressiamma Jacob and others Vs. Geologist, Department of Mininig and Geology and others reported in 2013 (9) SCC 725 in paragraphs 55 to 58 as held as under:

"55. The Mines and Minerals Act is an enactment made by the Parliament to regulate the mining activities in this country. The said Act does not in any way purport to declare the proprietary rights of 8 the State in the mineral wealth nor does it contain any provision divesting any owner of a mine of his proprietary rights. On the other hand, various enactments made by the Parliament such as Coking Coal Mines (Nationalisation) Act, 1972 and Coal Bearing Areas (Acquisition and Development) Act, 1957 make express declarations under Section 4 and 7 respectively providing for acquisition of the mines and rights in or over the land from which coal is obtainable. If the understanding of the State of Kerala that in view of the provisions of the Mines and Minerals Development (Regulation) Act, 1957, the proprietary rights in mines stand transferred and vest in the State, it would be wholly an unnecessary exercise on the part of the Parliament to make laws such as the ones mentioned above dealing with the nationalisation of mines.

Even with regard to the minerals which are greatly important and highly sensitive in the context of the national security and also the security of humanity like uranium - the Atomic Energy Act, 1962 only provides under Section 5 for prohibition or Regulation of mining activity in such mineral. Under Section 10 of the Act, it is provided that the Government of India may provide for compulsory vesting in the Central Government of exclusive rights to work those minerals. The said Act does not in any way declare the proprietary right of the State.

Similarly, the Oilfields (Regulation and Development) Act, 1948 deals with the oilfields containing crude oil, petroleum etc. Which are the 9 most important minerals in the modern world. The Act does not anywhere declare the proprietary right of the State.

For the above-mentioned reasons, we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the instant appeals, no such deprivation is brought to our notice and therefore we hold that the Appellants are the proprietors of the minerals obtaining in their lands. We make it clear that we are not making any declaration regarding their liability to pay royalty to the State as that issue stands referred to a larger Bench."

As per dictum of Hon'ble Apex Court, the Mines and Minerals Act, does not in any way purport to declare the proprietary rights of the State in the mineral wealth nor does it contain any provision divesting any owner of a mine of his proprietary rights. In other words, there is no law, which declares that all the mineral wealth/ subsoil rights vest in the State, on the other hand, the ownership of subsoil /mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process."

In the present case, Pankaj Kumar is the owner of land bearing Khasra No. 504/7. The land does not belong to State Government. It is a private land. The land, in question, was uneven and barren. Digging was carried out to make the land plane and fertile and not for the purpose of excavating mineral from soil. Therefore, in my opinion, no permission was required by the owner of the land for digging his own land.

In view of the above, writ petition is allowed. Impugned orders qua petitioner are hereby quashed.