SHYAM BIHARI SINGH Vs. STATE OF M P

JUDGEMENT

(1.) BY a common order dated 2-12-2006 passed in the writ petitions, a learned single Judge of this Court has referred the following two questions for opinion of the Division Bench : (i) Whether under Section 247 of the M. P. Land Revenue Code, 1959 for assignment of the right by the Government to any person in respect of land of which surface right vests in third person, the consent of land owner (Bhumiswami) is necessary? Any grant by the Government without any consent of such Bhumiswami is sustainable under the law? (ii) Whether the Division Bench in Premchand (supra), has rightly held that for assignment of rights in respect of any minerals, mines and quarries by the Government to a third person under Section 247 of the Code, an opportunity of hearing or consent of the bhumiswami is not required?

(2.) MR. Vivek Tankha, learned Senior Counsel appeared for the petitioner in W. P. No. 3548 of 2008 and Mr. A. P. Singh, learned Counsel appeared for the petitioners in W. P. Nos. 7745 of 2006,8873 of 2006,8874 of 2006,8876 of 2006,10706 of 2006, 10707 of 2006 and 1308 of 2008. Mr. Tankha leading the arguments on behalf of all the petitioners submitted that under Entry 54 of list- I of the Seventh Schedule read with Art. 246 of the Constitution, Parliament has power to make law on regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. He submitted that the State Legislature also has power under Entry 23 of List- II read with Art. 246 of the Constitution to make a law on regulation of mines and minerals but such power of the State Legislature is subject to the power of parliament under Entry 54 of List- I of the Seventh Schedule to the Constitution. He submitted that after Parliament enacted the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the 1957 Act') covering almost the entire field of regulations and development of mines and minerals, Section 247 of the m. P. Land Revenue Code, 1959 (for short 'the Code') stood over ridden by the provisions of the 1957 Act. In support of his submission, he cited the decision of the Supreme Court in Baijnath Media Vs. State of Bihar, AIR 1970 SC 1436. He submitted that the Division Bench of this Court in Premchand Vs. State, 1965 jlj 413 (CN 73) had not considered the provisions of the 1957 Act and had taken a view that Section 247 of the Code conferred on State Government unfettered power to exercise its powers over mines and quarries even though the right on surface of the land owned by a third person was attracted. He submitted that in a later decision in Ramchandra Badri Prasad Gour and others Vs. Associated Cement Co. Ltd. and others, 1989 MPLJ 265, a Division Bench of this Court has clarified the decision in Premchand (supra) and has held that grant of lease creates interest in the lessee providing a right to carry on a mining operation as right to enjoy immovable property and such a mining lease has the characteristics of a lease contemplated under Section 105 of the Transfer of property Act and that the provisions of Section 247 of the Code are only subsidiary provisions having little to do with assignment of right in minerals, mines and quarries.

(3.) MR. Tankha submitted that Section 10 (1) of the 1957 Act states that an application for inter-alia mining lease in respect of any land in which minerals vests in the Government shall be made to the State Government concerned in the prescribed form and shall be accompanied by the prescribed fee. He submitted that Section 10 (3) of the 1957 Act further provides that on receipt of an application for mining lease, the State Government may, having regard to the provisions of the 1957 Act and the rules made thereunder, grant or refuse to grant the permit, licence or lease and therefore relevant rules have to be read along with Section 10 of the 1957 Act. He submitted that Rule 22 of the mineral Concession Rules, 1960 (for short 'the 1960 Rules') made under the 1957 Act is titled 'applications for grant of mining leases' and sub-rule (3) (1) (li) of Rule 22 of the 1960 Rules provides that every application for grant of mining lease shall be accompanied by a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained the consent of the owner for starting mining operations. He submitted that Section 10 of the 1957 Act read with Rule 22 of the 1960 Rules thus makes it clear that an application for grant of mining lease has to be accompanied by consent of the owner of a private land where lease is to be granted in respect of minerals located on private land. He submitted that these provisions in Section 10 of the 1957 Act read with Rule 22 of the 1960 Rules have to be read along with the Constitutional right to property guaranteed to every person under Art. 300-A of the Constitution.