ABDULHUSEN SALEHBHAI SAHERWALA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has come with the case that he was granted mining lease by the State of Gujarat by order dated 12.12.1970 for excavation of graphite deposits in respect of land bearing S.No. 145A situated at village Muthai of Pavi Jetpur Taluka of Vadodara District admeasuring about 11 Acres. The period of this mining lease commenced on 29.11.1971 and was to last upto 10 years thereafter. It is also the case of petitioner that in between the period of 1978-79 a Project came into force and it was decided to construct Sukhi Dam in Baroda district. For this purpose, the State of Gujarat, through Revenue Department, issued Notification dated 26.10.1978 under Sub-sec (2) of Sec. 52-A of the Land Acquisition Act and thereby the Addl. Collector (Irrigation), Baroda was authorised and appointed as Special Land Acquisition Officer, Sukhi Project, Unit -2. The Special Land Acquisition Officer, Sukhi Project, Unit -2 informed the Assistant Director of Geology and Mining Department in 1982 that S.No. 145 A of Muthai Village would be sub-merged. The petitioner has alleged that during the subsisting mining lease, a show cause notice dt.26.12. 1984 was issued malafide and with ulterior motive by the Mining Department against the petitioner to show-cause as to why the subsisting mining lease should not be terminated on the grounds alleged therein and ultimately the Mining Department of the State of Gujarat determined the said mining lease of the petitioner on 21.6.1986. While the proceedings for determining the mining lease in pursuance of the show-cause notice dt.26.12.1984 were going on, Notification was issued under Sec. 4 of the Land Acquisition Act on 30.1.1985 in respet of the land under the lease and the Notification dated 15.3.1986 had also been issued under Sec. 6. It is also the case of the petitioner that on 26.3.1985 the acquiring authority had issued a notice to the petitioner in compensation Case No. 1/84 whereas the petitioner's mining lease had been determined at a latter point of time by the Mining Department on 21.6.1986. The petitioner approached the Central Government by way of revision but this Revision Application No. 1/6/28/86-MIV was rejected" by the Central Government by final order No.772 of 1988 on 31.10.1988 (14.12.1988). The copy of this order has not been placed on record, but Mr.Solanki, the learned counsel for the petitioner, passed on a xerox copy of this order for the perusal of the Court and the contents of this order are reporduced as under: "ORDER" (Under Sec. 30 of the Mines & Minerals (Regulation & Development) Act, 1957 and Rule 55 of Mineral Concession Rules, 1960). This revision application has been filed by the petitioner against the order of State Gove. of Gujarat bearing No. MCR-1584 (S-99)-2787-CHH dated 21.6.1986, determining the mining lease of the petitioner and forfeiting the security deposit on the ground that in spite of notice, the petitioner had failed to remedy the breaches within the stipulated period. The petitioner's case is that he had taken steps to remedy the breaches in time and had in fact informed the State Govt. about this before his mining lease was terminated by the impugned order. The facts of the case are as follows : The petitioner was granted mining lease for graphite over an area of 11 acres on 29.3.1971 for a period of 20 years. According to him, he had worked this mine regularly till 1979 when the construction of SUKHI DAM started in the vicinity. The construction activity dislocated his mining operation as he had no access to the lease-hold area because of which there was no production in the mine from 1981. The State Govt. issued a preliminary notification under Sec. 4 of Land Acquisition Act on 30th January, 1985 for acquiring lands for the Sukhi Dam including the lands held under mining lease by him. Finally, the State Govt. issued the notification under Sec.6 of the Land Acquisition Act on 15th April, 1986 and acquired the area. When the State Govt. issued him the 60 days show-cause notice dated 26th December, 1984, pointing out the breaches that he was not mining since a number of years, he was not submitting section plans, that he had not paid dead rent since 1982 and 1984 and he was not submitting 'L' forms from September, 1981 to June, 1984 he had submitted in reply on 19th February, 1985 that he had paid dead rent for the years 1982-83 and 1983-84 alongwith interest on 9th August, 1984, he had already furnished 'L' forms by January, 1985 in the office of the Asstt. Geologist, Mining Department, Baroda, that since Sukhi Dam construction was going on and the roads had been damaged because of which the mining area was not accessible, it was not possible for him to work the mine and the working of the mine will restart after the dam construction was completed and that since the pits get filled up every year by sand during the rainy season, it was not possible to take up section plans. The State Govt., however, was not satisfied with this reply and issued another notice of 30 days on 19.3.1986 calling upon the petitioner to show-cause why the mining lease should not be determined for the aforesaid breaches which had not been rectified. The petitioner submitted his reply on 23rd April, 1986 reiterating that it was not possible for him to work the mine because of construction of Sukhi Dam as he was not able to reach the mine site. The State Govt. were not satisfied with the reply and determined the mining lease under the impugned order dated 21.6.1986. The petitioner has alleged that the State Government determined the mining lease to avoid payment of compensation for acquisition of land for construction of Sukhi Dam. He has also alleged that because of the notification dated 30th January, 1985, under Sec. 4 of Land Acquisition Act, he was prevented from working the mine. We will like to take up these issues first. When a preliminary notification under Sec. 4 of Land Acquisition Act is issued, it only shows the intention of the Government to acquire land for public purpose. The valuation of land and building etc. is done as they exist on the date of such notification. If any construction taken up subsequently is not assessed for purposes of valuation. A preliminary notification under Sec. 4 of Land Acquisition Act does not deny a lessee the right to take up mining, or prevent him from taking up mining operation. The petitioner has hot produced any evidence that he was actually prevented by the Govt. Officials from taking up mining operation. Therefore, his plea that because of a notification under Sec. 4 of Land Acquisition Act, he was prevented by the Collector from taking up mining operation is not acceptable. The petitioner has also not produced any evidence to show any malafide intention on the part of the State Govt. in determining the lease so as to deny payment of compensation to him. The compensation is payable to land-owners for acquisition of private land and structures, etc. thereon. If the lessee was also the owner of the land held under mining lease he would be entitled to such compensation and it cannot be denied. From the submissions made, it has been admitted by the petitioner that the dead rent for the years 1982-83 and 1983-84 was paid in August, 1984. Form 'L' (monthly return for Mining) was not submitted for the period from Sept., 1981 to July, 1984. Therefore, the petitioner again stopped sending 'L'forms for the subsequent months. He submitted these forms for Febuary, 1985 to June, 1985 in July, 1985. The dead rent for the period 1984-85 and 1985-86 was paid on 7th October, 1986, after the lease was determined by the State Government on 21.6.1986. This clearly shows that the petitioner was not regular in sending monthly returns in Form 'L' and paying dead rent. Such breaches continued even during the period between the two notices issued in December, 1984 and March,1986. The petitioner has taken the plea that after Sukhi Dam construction started in 1979, he could not continue his mining operation as the mining area became in-accessible. That is why there was no production of minerals from 1981 onwards. It was open to the petitioner to present these facts before the State Govt. in time requesting for remedial action or to surrender the lease in case he was of the view that it was not possible to continue mining operation because of construction of the Dam. He did neither. He only took this plea when the State Govt. issued him 60 days notice under Mineral Concession Rules. He has not produced any evidence in support of his contention that it was not possible for him to continue mining operation. In absence of any such evidence and any timely representation from his to State Government in this regard, it is difficult for us to accept this plea. In view of the above, we come to the conclusion that the petitioner has not been able to substantiate that the State Govt. has wrongly determined his lease or was guided by malafide intention for passing the impugned order. We, therefore, find no reason to interfere with the order of the State Govt. The revision petition is accordingly rejected."

(2.) The petitioner then preferred Special Civil Application No.2328 of 1989 before this Court and this Special Civil Application was rejected by the Single Bench of this Court on 30.3.1992 and the contents of this order are reported as under:

(3.) It is given out by the learned counsel for the petitioner that the rejection of this Special Civil Application, as aforesaid, vide order dt.30.3.1992 was challenged by way of filing a Letters Patent Appeal but the Letters Patent Appeal was not entertained and dismissed as time barred. Thus the order passed by the Central Government with regard to the determination of the lease attained finality and thus the determination of the mining lease vide order dated 21.6.1986 also become final. After the rejection of the Special Civil Application on 30.3.1992, the petitioner preferred a Claim Application dt.29.6.1992 before the Special Land Acquisition Officer, Sukhi Project, Unit -2. The Special Land Acquisition Officer sent a communication dated 29.12.1992 to the petitioner in the matter of the petitioner's claim for compensation informing him that the Government land in question under Sec. No. 145A had already sub-merged in the water of Sukhi Dam and during the pendency of the acquisition proceedings the lease had been determined and for that reason the claim for compensation is refused. Now that the High Court had passed the order on 30.3.1992, the guidelines were being sought from the higher authorities to take up the matter for further action. Thereafter, on 2.1.1995 with reference to the petitioner's letter dt. 6.12.1994 the Special Land Acquisition Officer sent a letter to the petitioner informing him that whereas the lease had been determined by the Industry and Energy Department on 21.6.1986, there is no question of giving compensation for lease and to that effect a letter dt. 18.8.1986 had already been sent to the petitioner and, therefore, now nothing remains to be done in this regard and, therefore, the claim for compensation is rejected. After the aforesaid communication dt. 2.1.1995 the preset Special Civil Application was preferred in March 1995. On 22.10.1996 notice returnable on 5.11.1996 was issued by the Division Bench. The petitioner then sought an amendment, which was granted on 2.2.1998 and, thereafter, Rule was issued in this Special Civil Application on 2.3.1998. While no one has appeared on behalf of the Union of India i.e. respondent No. 1, respondents Nos. 2 and 3 have not filed any return whatsoever either at the stage of notice or after the issued of the Rule. Therefore, in the form of pleadings all that we have before us is the Special Civil Application filed by the petitioner.