K.C. Sood, J.
1. The question which calls for our answer, in this writ petition, is whether a lease granted by the Government for the extraction of mineral, lime stone in this case, from the Government land, the ownership of which land changed during the period of lease to private persons, can be extended, after the expiry of the lease under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 read with Mineral Concession Rules, 1960.
2. The Petitioners are the residents of village Shiva Rudana in Tehsil Paonta Sahib of District Sirmaur. They are joint owners of the common/shamlat land which measures 2123 bighas 15 biswas situate in Shiva Rudana Estate. In fact the villagers of village Shiva Rudana are admittedly proprietors of the shamlat land. The land owners of the estate pay land revenue for the shamlat Village Common Land to the State Government. This Shamlat land has not been partitioned amongst its various co-owners. There are rich deposits of high grade lime stone in the shamlat land.
3. The land in question vested in the State under the Himachal Pradesh Village Common Land (Vesting and Utilization) Act, 1974 ("1974 Act" for short). On June 16, 1984, after the vestment of this land in the State, the State Government granted mining lease over 100 bighas, including this village Shamlat land to M/s. Namarata Minerals and Chemicals, respondent No. 4 herein, ("Respondent Company" for short), for the extraction of high grade lime stone. The mining lease was granted for twenty years and expired on June 16, 2004.
4. Out of 100 bighas of land, leased to the respondent No. 4, 84.15 bighas consist of "Shamlat land" which though earlier was owned by the land owners of Shiva Rudana estate jointly but vested in the State Government under the "1974 Act". The remaining 15.5 bighas of land is owned by individual owners. However, by an amendment Act of 2001, the proprietary rights in the Village Common Land earlier vested in the State Government were re-vested with the land owners of village Shiva Rudana. In consequence, the State Government restored the ownership and possession of "Shamlat land" of Shiva Rudana Estate to the original owners by mutation No. 877 attested on May 21, 2004.
5. The respondent Company, even after the expiry of the period of lease, continued extracting High Grade Lime Stone. When complaints were made by the villagers to the State Government, they came to know that the State Government intend renewing the mining lease granted to the respondent No. 4 and pending renewal, it had issued permission for six months for the extraction of lime stone from the land in question (Annexure-P4). The protest letters addressed to the authorities by the villagers did not evoke any response.
6. The grievance of the petitioners is that as the ownership of the land vests with the petitioners and other co-owners of Shiva Rudana Estate, therefore, the State Government, (respondent No. 1) is not competent either to grant any further lease or to renew the lease which expired on June 16, 2005.
The case of the petitioners.
7. The plea raised is, the ownership of the land, including the minerals under the surface of the land in question do not belong to the State Government, therefore, the respondent-State has no right or jurisdiction to renew the lease or issue permit for the extraction of the lime stone from the land in question unless the owners consent for the grant of mining lease in their land for the simple reason that owner of the land is the owner of the minerals under the surface of the land.
8. It is the case of the petitioners that there is no entry in the revenue record to show that any other person or the State Government has any ownership right on the minerals in the land in question. The petitioners plead that owners of the land are ex-jure owner of the minerals in the land including High Grade limestone and for this reason, the State Government is bereft of powers to renew the lease, in question, in favour of the respondent Company and the action of the respondent-State granting lease/ permit for six months (Annexure-P4) through respondent No. 2, the State Geologist, in favour of respondent Company is illegal, without jurisdiction and void.
The petitioners pray for the following directions :
(i) For declaring the action of State Govt. in granting permits to respondent No. 4 for extraction of limestone over the village common land in estate Shiva Tehsil Paonta Sahib, District Sirmour after 21.5.2004 as illegal and void.
(ii) For directing the respondents not to allow/carry out any mining work or sanction any mining lease over the village common land owned by the villagers in village Shiva Tehsil Paonta Sahib, District Sirmaur, H.P.
(iii) For protection of fundamental rights as envisaged in Article 19 of the Constitution of India of the petitioners and to protect them from being exploited at the hands of Respondent No. 4-M/s. Namrata Minerals and Chemicals with the collusion of the State Government.
(iv) For directing the State Government to fix the responsibility of the officers who in collusion with Respondent No. 4-M/s. Namrata Minerals and Chemicals have led to the sanctioning of void mining permissions and consideration for renewal of mining lease.
(v) For directing the respondents to pay adequate compensation to the petitioners along with the amount of deed rent and royalty recovered from Namrata Minerals for the period.
(vi) For directing the respondents to produce the records of the case.
(vii) Any other order which this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners along with costs of this petition.
The stand of Respondents.
9. The State Government in its return has taken the stand that the Government has only returned the surface rights of the shamlat land vested in the State, by the amendment of 1974 Act, to the erstwhile owners and the private owners at the most are only entitled to compensation which can be either mutually agreed upon or may be determined by the Director of Industries, the Officer appointed by the Central Government under Rule 72 of the Mineral Concession Rules, 1960 ("1960 rules" for short).
10. According to the respondent State, the respondent Company has been allowed to extract the minerals after the expiry of the lease in view of the provisions of Rule 24A(6) of the 1960 rules and the lease holder respondent Company is entitled to the renewal of the mining lease under Sections 8(2) and 8(3) of Mines and Minerals (Development and Regulation) Act, 1957 (Mines Act for short) read with Rule 24A and 24(B) of the 1960 rules.
It is not disputed that the petitioners are the joint owners of joint owners of the land in village Shiva Rudana. It is the case of the State Government that the State Government is competent to grant a mining lease to any person in any land particularly in Shamlat land as the mineral rights even in the land belonging to private persons vest in the State.
11. An application for renewal of the mining lease was required to be made by the respondent Company at least twelve months before the date on which the lease was due to expire and under Rule 24A(6) of the 1960 rules, such application, if filed and not disposed by the State Government, before the date of expiry of the lease, the period of the lease would be deemed to have been extended by a further period till State Government passes an order on such application for extension. The respondent Company applied for the renewal of the lease in question on June 5, 2003 much before one year of its expiry, therefore, it has been allowed to work under Rule 24A(6) of 1960 rules and the case for the renewal of the lease is under consideration of the Government. The State Government refers to Section 8(2) of the Mines Act and pleads that the lease could be renewed by a period not exceeding twenty years.
12. A similar stand has been taken by the respondent Company M/s. Namrata Minerals and Chemicals. The respondent Company also plead that they operate the mines scientifically in accordance with approved mining scheme/plan and complying with all the environmental and other related laws. According to the respondent Company, the petitioners have no right either to the land in question or to the minerals therein even after the amendment of 1974 Act in the year 2001. It is though not disputed that the land of which lease was granted by the Government to the respondent No. 4 includes the land which is jointly owned by the co-owners of village Shiva Rudana. It is contended by the respondents that under Rule 24A(6) of 1960 rules, the respondent Company is entitled to the renewal of the mining lease automatically for another period of twenty years. It is the case of the respondent Company that under Condition No. 9 of the lease agreement, the respondent Company was required to set up a mineral based industry.
13. The respondent Company has set up a mineral based manufacturing units which manufactures calcium carbonate in the name of M/ s. Gill Chemical Pvt. Ltd., with a cost of rupees three crores and two other lime stone based units namely, M/s. Bactal Industries and M/s. Purcal Industries and for this reason too, the mining license deserves to be renewed in favour of the respondent Company. Supporting the stand of the Government, the respondent Company pleads that the rights in the minerals vest with the State Government. The revenue record including "WajibulArj" clearly indicates that the State is the owner of the minerals in the land in question and the owners-right holders can only use the stone and lime for construction of their houses from their respective lands without any payment of royalty to the Government.
14. With the consent of the parties, we heard the petition on merits, without formally admitting it, and we accordingly proceed to decide the same.
15. Heard Ms. Jyotsna Rewal Dua, Advocate, for the petitioners, Mr. M.S. Chandel, learned Advocate General with Ms. Abhilasha Kumari Additional Advocate General for respondents No. 1 to 3, Mr. Kuldip Singh, Senior Advocate for respondent No. 4.
16. Under the Mines Act, Control and Regulation of the mines and development of minerals vests with the Union Government in view of Entry 54 of the Union List (Seventh Schedule to the Constitution). The Mines Act came into force in 1957. This Act provides for the control and regulation of mines and development of the minerals as provided under the Act. Section 4 mandates that no person can undertake any reconnaissance, prospecting or mining operations in any area except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or of a mining lease granted under the Act and the rules made under the Act. Section 8(1) stipulates that a mining lease may be granted for a period not exceeding thirty years and not less than twenty years. Sub-section (2) of Section 8 says that the mining lease may be renewed for a period not exceeding twenty years.
17. Now Chapter IV of 1960 rules provides for the grant of mining lease in respect of land in which the minerals vest in the Government. It is not in dispute that the respondent No. 4 was granted mining lease for a period of twenty years under Chapter-IV of 1960 rules. Rule 24A provides for renewal of mining leases in respect of the lands in which the minerals vests in the State Government. Section 24B of the Act provides for the renewal of a mining lease for a period not exceeding twenty years if the mineral extracted are used in the Industry of which lessee is owner or in which he holds not less than 50% of controlling interests.
18. It is Chapter-V of 1960 rules which provides for the procedure for obtaining mining lease in respect of land in which the mineral vests in a person other than the Government.
Now in 1984 when the mining lease was granted in favour of the respondent No. 4, the mineral, i.e., lime stone vested in the State Government and therefore, mining lease in favour of respondent No. 4 was granted under Chapter-IV, Rule 31 of the "1960 rules". Rule 31 provides that where art application for the grant of mining lease has been allowed, a lease deed in Form 'K' or in a form as near thereto as circumstances of each case may require, shall be executed within six months of the order granting such lease or within such further period as the State Government may allow.
19. The situation changed after coming into force of the Amendment of 1974 Act in 2001. Out of 100 bighas of land leased to the respondent Company, 84.15 bighas detailed in para 2, sub-para (ii) of the petition was owned and possessed by the owners of village Shiva Rudana jointly before its vestment in the State Government in the year 1974. However, after the re-vestment of this land in the owners of the land of village Shiva Rudana, the State Government ceased to be its owner and admittedly, is no longer in possession of the same.
20. The first contention raised by Mr. M.S. Chandel, learned Advocate General and Mr. Kuldip Singh, learned Senior Advocate is that the Government, inspite of the re-vestment of the land in the petitioners and others continues to be the owner of the minerals in the land in question. Ms. Dua counters that there is nothing on the record which may show that the minerals in the land in question inspite of the vestment of the lands in the villagers of village Shiva Rudana continue to be the property of the Government.
21. Both learned Advocate General and Kr. Kuldip Singh, learned Senior Counsel draws our attention to Sections 42 and 43 of the H.P. Land Revenue Act (Revenue Act for short) and submit that all minerals in the land, irrespective of the ownership, vests in the State Government and therefore, the State Government is competent to renew the licence under Rule 24(b) of 1960 rules.
22. As already noticed, Rule 24(b) falls under Chapter-IV of 1960 rules which provides for grant of mining leases in respect of the land in which the minerals vests in the State Government.
The contention is fallacious.
Section 42 of the Land Revenue Act reads :
42. Right of the Government in mines and minerals.--All mines of metal and coal and all earth oil and gold washings, shall be deemed to be the property of the Government for the purposes of the State and the State Government, shall have all powers necessary for the proper enjoyment of the Government's rights thereto.
23. A reading of Section 42 shows that only the mines of metal and coal, earth oil and gold washings is deemed to be the property of the Government and State Government shall have the powers for proper enjoyment of the Government rights thereto. By no stretch, it can be said that the limestone is a metal or coal or is a gold washing. In fact, First Schedule to the Mines Act under Part-C names the metallic and non-metallic minerals. The lime stone does not find mention in Part-C of Schedule-I. What follows from it is that Section 42 of the Land Revenue Act is of no assistance to the respondents.
24. Now Section 43 of the Land Revenue Act reads :
43. Presumption as to ownership of forosts, quarries and waste lands.--(1) When in any record of rights completed before the eighteenth day of November, 1871, it is not expressly provided that any forest, quarry, unclaimed, unoccupied, deserted or waste-land, spontaneous produce or other accessory interest in land belongs to the land-owners, it shall be presumed to belong to the Government.
(2) When in any record-of-rights completed after that date it is not expressly provided that any forest or quarry or any such land or interest belongs to the Government, it shall be presumed to belong to the land-owners.
(3) The presumption created by Sub-section (1) may be rebutted by showing--
(a) from the records or report made by the assessing officer at the time of assessment; or
(b) if the record or report is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land or interest;
that the forest, quarry, land or interest was taken into account in the assessment of the land revenue.
(4) Until the presumption so rebutted, the forest, quarry, land or interest shall be held to belong to the Government.
25. A careful reading of Section 43, noticed above, shows that if any record of rights, completed before November 18, 1871, does riot expressly provide that any forest, quarry, unclaimed, unoccupied, deserted waste land, spontaneous produce or other accessory interest in land belong to the land owners, then said property shall be presumed to belong to the Government. This presumption is rebuttable. However, if the record of rights completed after November 18, 1871, does not expressly provide that any forest or quarry or any such land or interest belongs to the Government, the presumption is that it belongs to the land owners.
26. The respondents base their case solely on the entries in the Wazibularz of the village as recorded in the Misal Hakiat for the year 1960-61 (Annexure-P5) to show that the mineral in question belong to the State Government irrespective of the ownership of the land.
27. It may, at the out set, be noticed that these entries were recorded after November 18, 1871 and, therefore, the presumption is that the quarries belong to the owners of the land.
28. The relevant entry in the Wajibularz on which the respondents rely may be extracted :
Sr. No. (Jha). Contents of para.
Heading of para. In our village, Jungle has been Rights of the Government in separated. All Government property respect of ownership of Nazul (Govt. or un-claimed or Banjar or un- owned property), forest, unclaimed possessed land of which Government or unpossessed or abandoned or un- may have right, i.e., stone quarries,
occupied land or quarries of stone or natural growth shall be the property old buildings or ruins, old monuments of the Government. However, right of public importance or natural growth holders may, from the land possessed over the land and other additional by them, take stones for the purpose benefits accruing there from situate of construction and Bhati lime (used within the Muhal. for the purpose of construction) without payment of any charges for
29. A reading of above extract does not show that lime stone mines vests in the State Government irrespective of the ownership of the land. In our view, this entry cannot be construed to mean that high grade lime stone belongs to the Government. The presumption arising under Section 43 of the Land Revenue Act is that the lime stone belongs to the right holders and not to the Government.
30. A careful reading of heading of the para and corresponding contents of the para shows that the entry speak about the rights of the Government in the Government land (Nazul land), Government property, forest, unclaimed or un-possessed land or quarries of stones, old buildings etc., and not in the land which is owned by the individuals or community of the village. Admittedly, the land in question is not the Government property therefore, the lime stone under the earth cannot be said to vest in the State Government.
What is Wajibularz and how entries in the Wazibularz are to be read?
31. In Para 295 of Punjab Settlement Manual, a Government Publication, Wajibularz is described as a village administration paper which should record the existing customs regarding rights and liabilities in the estate. The entries in the Wazibularz are recorded to facilitate the setting apart of portions of the common village waste for the plantation of trees if the landowners agree with reference to the provisions of Section 42(2) of the Land Revenue Act. It is said to be a convenient, though anomalous arrangement to record the rights of Government in quarries, kankar etc., in the wajibularz.
Para 295 reads :
295. Wajibularz.--The wajibularz, or village administration paper should be a record of existing customs regarding rights and liabilities in the estate. It should not be used for the creation of new rights or liabilities, or for what may be called village legislation. Entries have sometimes been made which do not profess to embody existing usage, but to declare a course of action which the landowners agree to follow for the future. An example of this is the insertion of a stipulation that a fixed amount of the common grazing land will always be excluded from partition. It is doubtful, whether this is strictly legal with reference to the words used to describe the wajibularz in Section 31(2)(b) of the Land Revenue Act, and even if it is, it is questionable whether it is a wise use to make of the village administration paper. There is always a danger that some stipulation may be inserted as an agreement of all the landowners on which all are not as a matter of fact of one mind, because adherence to it is likely to produce results which official think would be beneficial to the people. But orders issued by the Government in 1881 distinctly allowed entries to be made in the wajibularz to facilitate the setting apart of portions of the common village waste for the planting of trees if the landowners agreed. With reference to the provisions of Section 42(2) of the Land Revenue Act it is a convenient, though somewhat anomalous, arrangement to record the rights of Government in quarries, kankar, etc., in the wajibularz.
Para 191 of this Manual records :
191. Ownership of mines, quarries, and Co.--The ownership of all mines of metal and coal and of gold washings by the State was, asserted in Section 29 of Act XXXIII of 1871 and again in Section 41 of Act XVII of 1887, where earth-oil is also declared to be Government property. The title of Government being secured by legislation need not be referred to in records-of-rights. But care must be taken to safeguard any rights possessed by the State in forests, quarries, the spontaneous produce of land, and the like, by noticing them in the village administration paper. The law on the subject is a little intricate. The fact that a record-of-rights framed after the passing of Act XXXII of 1871 does not expressly declare that any "forest quarry, unclaimed, unoccupied, deserted or waste land, spontaneous produce, or other accessory interest in land" belongs to Government raises a presumption that it belongs to the land-owners of the estate records framed before the passing of that Act. Unless it is expressly in which it is situated. No such presumption arises in the case of provided in them that any forest, quarry, etc., belongs to the landowners, it is presumed to be the property of the State. But the presumption may be rebutted by showing--
(a) from the record or report made by the assessing officer at the time of assessment, or
(b) if the record or report is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land or interest,
that the forest, quarry, land, or interest, was taken into account in the assessment of the land-revenue.
32. Thus, it was recognized as far back as in 1899 that if records of rights prepared after 1871 does not expressly declare that any forest, quarry, unclaimed, unoccupied property, old monuments of public importance, deserted, spontaneous produce or other interest in the land belongs to Government, the presumption is that it belongs to the land owners of the estate. In the present case, it is admitted position that the land in question, is subject to land revenue and therefore, when land revenue was assessed, it has taken into consideration the minerals which may be underneath the surface of the land.
33. Appendix VIII-E to the Settlement Manual records as to what wajibularz should contain. Appendix VIII-E reads :
VIII-E. WAJIBULARZ OR VILLAGE ADMINISTRATION PAPERS.
1. The statement of customs respecting rights and liabilities on the estate shall be in narrative form: it shall be as brief as the nature of the subject admits, and shall not be argumentative, but shall be confined to a simple statement of the customs which are ascertained to exist. The statement shall be divided into paragraphs numbered consecutively, each paragraph describing as nearly as may be separate custom.
2. The statement shall not contain entries relating to matters regulated by law; nor shall customs contrary to justice; equity, or good conscience; or which have been declared to be void by any competent authority, be entered in it. Subject to these restrictions, the statement should contain information on so many of the following matters as are pertinent to the estate:
(a) Common land; its cultivation arid management; and the enjoyment of the proceeds thereof.
(b) Rights of grazing on common land.
(c) Rights to the enjoyment of sayer produce.
(d) Usages relating to village expenses (malba).
(e) Customs relating to the irrigation of land.
(f) Customs relating to mills, tanks; streams; or natural drainages.
(g) Customs of alluvion and dilluvion.
(h) The rights of cultivators of all classes not expressly provided for by law (for instance, rights to trees or manure, and right to plant trees) and their customary liabilities other than rent.
(i) Customary dues payable to village servants, and the customary service to be rendered by them.
(j) The rights of Government to any nazul property, forests, unclaimed; unoccupied; deserted; or waste lands, quarries; ruins or objects of antiquarian interest, spontaneous products, and other accessory interest; in land included within the boundaries in the estate.
(k) The rights of Government in respect of fish and fisheries in streams rivers, etc.
(l) Any other important usage affecting the rights of land-owners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property.
3. Where the record of rights is being made for the first time, if the persons interested are not agreed as to the existence of any alleged customs the Collector, or an Assistant Collector of the 1st grade shall decide the dispute in the manner provided in Section 36 of the Land Revenue Act. Where the record of rights is being revised, the Collector or Assistant Collector of the 1st Grade shall similarly decide disputed entries; but in doing so he shall have regard to the provision of Section 37 of the Land Revenue Act...
34. It may be noticed that the Wajibularz is regulated by law. Sub-para 2 (j) of the Appendix makes it clear that the Wajibularz shall record the rights of Government to only the property, any Nazul property owned by the Government, i.e., in respect of forests, unclaimed, unoccupied, deserted or waste lands, quarries, ruins or objects of antiquarian interest, spontaneous products and other accessory interest in such land included within the boundaries of the state. Indeed if the Government land is exploited by the owners, they are liable to pay such charges as may be levied.
35. Now reading the extract of the Wajibularz, on which the respondents heavily rely, as noticed above, it only records that right holders are entitled to take stones, Bhatichuna from the Government land in their possession for their own use without payment of "Mahsul", i.e. any charges. Expression "Mahsul" cannot be read as royalty. Expression "Mahsul" has been explained in paragraph 170 of the Settlement Manual which reads :
170. Division of the produce where this form of tenure prevails.--Where this form of tenure prevails the primary division of the produce is into the mahsul which presents the share of the State when revenue was realized in kind, and the balance, sometimes known as the rahkam. Under our rule the person who pays the land revenue receives the mahsul. Our settlements have been made with the inferior proprietor, and he is, therefore, entitled to it, but private arrangements sometimes transfer liability for the revenue and the right to the mahsul to the superior proprietor or to the tenant, or even to some person who has no connection with the land. Out of the rahkam has to be paid the pai path fee of the superior proprietor, and, where the cultivator is a tenant, also the lichh or kasur of the chakdar--
Under native rule the revenue or mahsul was taken in kind and as the rate approached in many cases that of a full rent, there remained after deducting the cultivator's and the State share but a small fraction for the non-cultivating proprietors. This fraction was called kasur (the plural of kasur, and meaning fraction). When this fraction was small ii would be hardly worth the proprietor's while to go perhaps some distance to personally superintend the division of the crops; the rent he received from the cultivator with one hand was immediately almost entirely paid away with the other in the shape of the Government revenue, and he would remain responsible for any balances. Hence the custom would naturally spring up of the Chakdar allowing his tenant to pay the Government share direct to the Government officials, and to give the Chakdar a fixed allowance in lieu of the actual balance. It is this fixed allowance which is now, and has for sometime been, generally known as the hakh kasur, and its general rate is two sers in the maund or one-twentieth of the gross produce. The chakdar who received this allowance is called the kasur khor, or kasur-khwar, the eater of the kasur, but the word is often corrupted into kasur-khwah. From his kasur the kasur-khwah has to keep in repair the brickwork of the well, and pay the hakh zamindari of half a ser in the maund if there is one. Under the system of fixed cash assessment the permission to engage direct for the Government revenue has grown into a very valuable right; the chakdar finds that he cannot recover his former position, and the only right left to him is the nominal ownership of the well and the right to receive kasur. This chakdar who has lost his right to engage is now the person generally meant by kasur khwar, and this position has frequently been conferred as a compromise on a man who has claimed a well of which he or his ancestor was undoubtedly the original proprietor, but from all possession of which he has long been excluded.... The word kasur is, however, still used occasionally in its original sense of the profits of the chakdar, who pays the revenue himself, and such a man is occasionally known as kasur-khwar". In Dera Ghazi Khan, where the division of ownership into superior and inferior does not appear to exist, the proprietor takes from the tenant both the mahsul and a small fraction of the rahkam as lichh, but in some places, the double payment has been consolidated into a simple fraction of the gross produce.
36. The contention of the learned Advocate General that payment of "Mahsul" for extraction would indicate that the lime stone mines belong to the Government is, in our view, without any foundation. Firstly, as noticed earlier, the entry in Wajibularz relates to the Government land and not to the private land, secondly, Mahsul is the share of the State when revenue was realized in kind and the balance was known as "rahkam" and therefore, Mahsul is nothing but land revenue payable to the Government. This term does not denote royalty as contended by the learned Senior Counsel for the respondent Company. It is the owner of the land under mining operation who is entitled to royalty.
37. The inescapable conclusion is that the lime stone mines in the shamlat land belong to the owners of the land and not the Government.
38. This apart, we are also of the considered view that owner of the surface land is entitled to minerals beneath the land and the minerals necessarily pass with the rights to surface unless contrary is shown. We draw support for the view we have taken from the Judgment of the Constitution Bench of the Supreme Court in Raja Anand Brahma Shah v. State of Uttar Pradesh and Ors. . The following
observations of the Supreme Court in para 18 of the judgment are apposite :
Prima facie the owner of a surface of the land is entitled ex jure to everything beneath the land and in the absence of any reservation in the grant minerals necessarily pass with the rights to the surface (Helsbury's Laws of England, 3rd Edn., Vol. 26 p. 32.5). In other words, a transfer of the right to the surface conveys right to the minerals underneath unless there is an express or implied reservation in the grant.
39. This view was reiterated in Bhagwan Dass v. State of H.P and Ors. AIR 1876 Supreme Court 1393.
So far the renewal of the lease under Rule 24(b) of 1960 rules is concerned, we may notice that Section 4 of the Mines Act specifically provides that no person can undertake either reconnaissance, prospecting or mining operations in any area save and except under a permit as may be granted in respect of a particular mining lease under the rules made under the Act. The only exception is the operations which may be undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government and the Mineral Exploration Corporation Limited, a Government Company. Therefore, irrespective of the ownership of the land in which the minerals are to be win, a licence or permit or mining lease for such winning is necessary. Section 13 provides for making of the rules by the Central Government for regulating the grant of prospecting licences and mining leases in respect of the minerals.
40. As noticed earlier, Chapter-IV of 1960 rules governs the grant of mining leases in respect of the land in which the minerals vests in the Government, whereas, Chapter-V provides for the mining leases and prospecting licences in respect of the land in which the minerals vests in a person other than the Government.
41. Rule 24(b) though provides that a person who is a holding a mining lease for a mineral which is used in his own industry shall be entitled for the renewal of his mining lease for a period of twenty years unless he applies for a lesser period but this rule falls under Chapter-IV of the rules which pertains to grant of mining leases in respect of the land in which minerals vests in the Government. The mineral in question, we have held, does not vest in the Government, therefore, Rule 24(b) is of no assistance to the respondents.
42. Ms. Dua urges with considerable force that no license or lease to win minerals in the land can be granted by the Government in private land even if the mineral vest in the Government.
43. We find considerable force in the argument. Right to win minerals from private land has to be necessary by an agreement between the lessee and the land owner. In the absence of consent of the land owners, excavation of mine can be obstructed by the land owners and peaceful operation of the excavation of mine may become impossible and for this reason alone the consent of the owners of the land is necessary, even if minerals vests in the Government. We are fortified for the view we have taken from the rule laid down by the Supreme Court in Pallava Granites Industrial India (P) Ltd. v. Government of A.P. and Ors. . Their Lordships ruled :
The right to excavate the mines from the land of private owner is based on the agreement; unless the lessor gives his consent, no lessee has a right to enter upon his land and carry on mining operations. The right to grant mining lease to excavate the mines beneath the surface is subject to the agreement of the landowners. Therefore, with a view to ensure that there will not be any obstruction in the working of the mining lease and also for the peaceful operation of the excavation of the mines, insistence on the consent of the landlord is necessary.
44. From whatever angle we may look it is not given to the respondent-State either to extend the lease, in question, or even grant fresh lease in respect of the Shamlat land owned by the petitioners along with other co-owners. Respondent-State was not competent to permit the respondent company to win minerals from the mines for six months pending renewal of the mine lease (Annexure P-4). In any event, the lease could not be renewed without the consent of the owners of the land.
45. In result, we allow the writ petition in the following; terms :
(a) The action of the respondent No. 1 in permitting the respondent No. 4 for the extraction of the limestone over the village common land in Estate Shiva Rudana, Tehsil Paonta Sahib after June 25, 2004, (Annexure P4) being illegal arbitrary and without jurisdiction is set aside. Annexure-P4 is accordingly quashed;
(b) The respondent-State is directed not to allow any mining work or sanction any mining lease over the Shamlat land owned by the villagers in Shiva Rudana Tehsil Paonta Sahib, District Sirmaur without the consent of the owners;
(c) The respondent No. 4 is directed to stop all mining activities in the land owned by the villagers of Shiva Rudana as detailed in the petition.
GMPs No. 1111, 1112, 1213, 1214, 1226 and 1247 of 2005.
No order in view of the disposal of the main writ petition.