PRACHI Vs. THE STATE OF M.P

JUDGEMENT

(1.) PETITIONER has filed this writ petition and challenges the constitutional validity of Section 247 of the M.P. Land Revenue Code (hereinafter referred to as "the Code") and it is said that the aforesaid provision is inconsistent to and contrary to the provisions of the Land Acquisition Act, 1894, Mines and Minerals (Development and Regulation) Act 1957 and Minerals Concession Rules 1960 and therefore, the provisions of Section 247, particularly sub section 4 and 5 be declared as ultra vires.

(2.) FACTS of the case goes to show that petitioners are owners of land situated in Patwari Circle 5, Khasra No. 317/1, 317/2, 317/3, 373/2 and 373/3 situated in village Jagthar, Tahsil Patharia, District Damoh. Respondent No. 3 M/s. Dimond Cement has established a cement factory in the area in question and they have obtained mining lease for the area. It seems that they have planned to construct a conveyor for the purpose of lifting the minerals from its sources and through rope way and cable it is to be transported to the manufacturing area. It is the grievance of the petitioners is that for the said purpose the Collector has granted permission to enter the land belonging to the petitioner under Section 247(4) and (5) of the Code and as permission is granted for the purpose of mining activity, it is said that the right of the petitioner under the Land Acquisition Act is taken away. That apart, it is tried to be emphasized that the provisions of Section 247(4) of the M.P. Land Revenue Code is contrary to law governing grant of mining lease for which it is only the Central Government which is competent to enact a law. Learned counsel for the petitioner vehemently tried to argue that the provision of Section 247 of the M.P. Land Revenue Code be cleared as Ultra Vires as it infringes into the right which is vested with the Central Government for the purpose of legislating in the field of mines and minerals.

(3.) WE find that when proceedings were initiated against the petitioner under Section 247 and order was passed by the Collector in the matter on 28.1.2012, petitioner challenged the order passed in a proceeding held under Section 247(4) and (5) of the Land Revenue Code by filing a writ petition before this Court being W.P. No. 2804/2012. The Writ Court found that against an order passed by the Collector, statutory appeal, second appeal and revisions are available under the M.P. Land Revenue Code and therefore, dismissed the writ petition granting liberty to the petitioner to take recourse to the statutory remedy available. After the writ petition was dismissed a Writ Appeal was filed being W.A. No. 484/2012 and the Writ Appeal was also dismissed by the Division Bench holding that the petitioner has a right of appeal under the M.P. Land Revenue Code. The judgment relied upon in the case of Shyam Bihari Singh Vs. The State of M.P. - : 2008(4) MPHT 151 (DB) was also considered by the Division Bench while dismissing the writ appeal.