IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 246 of 2008 Reserved on : 16th September, 2008 Date of Decision: 29th September, 2008 Satya Tomar Appellant Versus Gayatri Minerals Samiti and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Deepak Kaushal, Advocate. For the respondents: M/s D.R.Verma and P.P.Chauhan, Advocates. Sanjay Karol, J. Smt. Satya Tomar, plaintiff has filed the present appeal assailing the order dated 4.4.2008 passed in CMA No. 108/N/6 of 2007 filed in Civil Suit No. 5-N/1 of 2007, by Additional District Judge, Sirmaur District at Nahan, H.P. Appellant herein is the plaintiff and the respondents herein are the defendants in the suit and are referred to hereinafter as such. Plaintiff filed a suit for damages and also for a decree of permanent injunction restraining the defendants from interfering or putting obstructions in the working of the mine in land comprised in 711/1, 712/1, 715/1 and 720/1, measuring 105.18 bighas in Village Kamrao, Tehsil Paonta Sahib, District Sirmaur, H.P. Whether the reporters of Local Papers are allowed to see the Judgment? 2 Plaintiff’s application under Order 39 Rules 1 and 2 read with Section 151, CPC filed alongwith the suit, seeking interim relief stands dismissed in terms of the impugned order for the reason that consent of all the land owners was not obtained and even those persons who had allegedly consented were in fact seriously disputing the consent and the plaintiff’s right to extract minerals. I have heard the learned counsel for the parties and also perused the record. Certain facts which emerge from the record are as under:- (1) Respondents No.2, 3 and 4 are co-owners of land comprised in Khasra No. 715 and 720; (2) Land comprised in Khasra Nos. 711 and 712 is recorded as “Shamlat Deh Hasab Rasad Khewat”, which means that the same is also the property of the estate right holders in Village Kamrau, of which all the respondents 2 to 7 are inhabitants and estate holders; (3) the State has granted rights in favour of the plaintiff to extract minerals; (4) As stated by the learned counsel, the grant of rights is subject matter of challenge in writ proceedings before this Court, however, no interim stay has been granted so far, and (4) the consent of all the co- sharers has not been obtained. In fact defendants Gita Ram, Sunder Singh and Jagat Singh, who allegedly gave their consent have challenged the same in the written statement. From the record, it is evident that the consent of all the co- sharers has not been obtained. The question, however, is as to whether the consent of co-sharers is necessarily required to be obtained prior to the execution of the work by the lessee or not. For the said purpose Mr. Kauahal has referred to and relied upon para 14 of the decision of the Apex 3 Court in State of T.N. vs. M.P.P. Kavery Chetty, (1995) 2 SCC 402, which is reproduced as under:- “Learned counsel for the respondents submitted that under the first proviso of Rule 19-A the 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 landowner 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.” In my view, this question is no longer res integra. In fact a Division Bench of this Court in Kalyan Singh and others vs. State of H.P. and others, 2006(1) Shim. L.C 41, after considering the ratio of law laid down by the Apex Court in Raja Anand Brahma Shah vs. State of Uttar Pradesh and others, AIR 1967 SC 1081, Bhagwan Dass vs. State of H.P. and others, AIR 1976 SC 1393 and also in Pallava Granites Industrial India (P) Ltd. vs. Government of A.P. and others, 1997 (4) SCC 559 and the provisions of the Land Revenue Act, the Punjab Settlement Manual, which deal with the customary rights of the estate holders, has held that right to extract minerals from private land has to be necessary by an arrangement between the lessee and the land owners. 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 4 impossible and for this reason alone the consent of the land owners of the land is necessary, even if the minerals vest with the State. In MPP Kavery Chetty (supra), the observation made by the Apex Court was in the context where the Court was dealing with the Mines and Minerals (Regulation & Development) Act, 1957 and also Tamil Nadu Mineral Concession Rules, 1959. However, in the present case, the provisions of Land Revenue Act would apply and the revenue record evidently show that the defendants are share holders and the land is in the rural area. In fact the plaintiff herself has relied upon the consent, obtained from some of the defendants, which is seriously disputed by them. Till such time the matter with regard to authenticity of consent is adjudicated upon, it cannot be said that the consent of at least some of the co-sharers had been obtained by the plaintiff. In the written statement, it is averred that the plaintiff is exercising political influence and the mining would result into destruction of natural water sources, lands, Ghasnis apart from affecting the personal rights of the land owners. It is also averred that the plaintiff is powerful and resourceful lady and has embroiled the defendants unnecessarily in frivolous litigation. In my view, the plaintiff has not made out a prima facie case for grant of interim injunction as the balance of convenience and irreparable loss are in favour of the defendants. For the foregoing reasons, I find no ground to interfere with the well reasoned impugned order. The appeal is dismissed. However, the Court below shall decide the matter in accordance with law uninfluenced by any of the observations made hereinabove. 5 CMP No.292/2008 In view of the dismissal of the main appeal, the present application is also dismissed and the interim order is vacated. 29th September, 2008 (Sanjay Karol) (C) Judge.