Nachiketa Kumar Singh vs The State of Madhya Pradesh

S.C. Sharma, J.—The petitioner before this Court is aggrieved by the action of the respondent-State in not executing the lease deed in respect of prospecting license granted to the petitioner on 13/07/2001 under the provision of Mineral Concession Rule, 1960.

The facts of the case reveal that the petitioner applied for grant of prospecting license on 16/07/1997 and the same was granted on 13/07/2001. Petitioner further stated that he was not served with a copy of the order granting prospecting license by the respondent State and the petitioner submitted various representations to the State Government and finally a certified copy of the same was obtained by the petitioner on 24/02/2006. The petitioner''s contention is that inspite of the fact that a prospecting license has been granted in his favour, the authorities have not executed the lease deed as required under the Mineral Concession Act, 1960 and therefore, petitioner came up before this court for issuance of an appropriate writ, order or direction, directing the respondents to execute the lease deed.

After issuance of the notice in the present case, reply was filed by the respondents and the respondents have taken a stand that by an order dated 12/02/2007 they have cancelled the license granted to the petitioner. The reasoning assigned in the order dated 12/02/2007 is that the consent of land owner was obtained by fraud by the petitioner and the respondent/State has prayed for dismissal of the writ petition.

Heard learned counsel for parties and perused the record.

In the present case, it is an admitted fact that the prospecting license was granted to the petitioner in terms of Rule 15 of the Mineral Concession Rule, 1960 and the same has been cancelled by an order dated 12/02/2007 passed by the State Government on the ground that consent of the land owner was obtained by fraud.

Learned counsel for petitioner relied upon the judgment delivered by a Division Bench of this Court in the case of Shyam Bihari Singh and Others Vs. The State of M.P. and Others, . He has placed heavy reliance upon paragraph Nos. 16, 17 and 18 of the aforesaid judgment. Para 16, 17 and 18 of the aforesaid judgment reads as under:-

Coming now to the argument of Mr. Tankha that, it grant of mining lease in respect of minerals located in the private land can be made by the Government without the consent of the owner of the private land, then the valuable right to property which is not only a constitutional right but also human right will be seriously affected, we may say that as and when a challenge to the provisions of the 1957 Act and the 1960 Rules is mad on this ground, the same can be considered by the Court, but so long as the language of Section 24-A of the 1957 Act and of the 1960 Rules, discussed above, is clear, we have no option but to hold that consent of the owner of the private land in respect of which mining lease is sought to be given by the Government is not mandatory. We are supported by para 14 of the judgment of a three Judge Bench of the Supreme Court in State of Tamilnadu Vs. M.P.P. Kavery Chetty (supra) which is quoted herein below:-

Learned Counsel for the respondents submitted that under the first Proviso of Rule 19-A a consent of the owner of the land was not made a condition and it was bad in law on that account. The submission does not take note of Section 24-A of the said Act. Thereunder the holder of a mining lease under the said Act or Rules made under it is empowered to enter the land on which the lease has been granted and carry out mining operations. He is obliged 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

The three Judge Bench of the Supreme Court thus clearly held that the consent of the owner of a private land is not a condition precedent for grant of mining lease or for entering upon the land on which mining lease is granted for carrying out mining operations and the lessee is only obliged to pay compensation for any loss or damage to the owner of the private land.

The judgment in Pallava Granites Industrial India (P) Ltd. (supra) has been delivered by a two Judge Bench of the Supreme Court and has not noticed either Section 24-A of the 1957 Act or the decision of the Three Judge Bench of the Supreme Court in State of Tamilnadu (supra). The decision in Pallava Granites Industrial India (P) Ltd. (supra) also is not based on interpretation of Section 10 of the 1957 Act or Rules 22 of the 1960 Rules.

In the result, we answer the questions referred to us as follows:-

(i) The Division Bench in Premchand Vs. state (supra) based on Section 247 of the M.P. Land Revenue Code, 1959 is not applicable to grant of mining leases after the enactment of Mines and Minerals (Development and Regulation) Act, 1957 and the rights of the lessee and the owner of the private land in respect of which the mining lease is granted will be governed by the provisions of the 1957 Act and the 1960 Rules made thereunder.

(ii) The consent of the owner of the private land or opportunity of hearing to such owner of the private land is not mandatory for grant of a mining lease under the Mines and Minerals (Development and Regulations) Act, 1957 and the grant of mining lease by Government without such consent or opportunity of hearing is sustainable in law.

His contention is that in the light of the aforesaid judgment the consent of the land owner of a private land is not a condition precedent for grant of mining lease or for entering into the area on which lease was granted for carrying out the mining lease and the lessee is only obliged to pay compensation for any loss or damage to the owner of the private land. Learned counsel has further stated that the petitioner has also applied for grant of prospecting license and in the light of the aforesaid judgment the question of consent does not arise. He has also placed heavy reliance upon the No objection certificates granted by the land owner Annexure P/7 and P/8, which are also on record and it has been categorically stated that NOC given by the owner was not withdrawn at any point of time.

This court is of the considered opinion that in the manner and method the impugned order has been passed that to, without granting any opportunity of hearing to the petitioner smacks mala-fide and arbitrariness. This court has gone through the statutory provision as contained in Mineral Concession Rule, 1960 and the fact remains that the petitioner never heard at any point of time while passing the order dated 12/02/2007.

Resultantly, the impugned order dated 12/07/2007 is accordingly set-aside and the matter is remanded back to the State Government to decide the issue afresh in respect of grant of prospecting license. Needless to mention that the State Government while deciding the matter afresh shall keep in mind the provisions of Mineral Concession Rule, 1960 as well as the judgment delivered by a Division Bench of this Court in the case of Shyam Bihari Singh (supra).

The aforesaid exercise of passing a fresh order, after granting opportunity of hearing to the petitioner be concluded within a period of 90 days from the date of receipt of certified copy of this order.

Certified copy as per rules.