CIVIL WRIT PETITION NO. 9354 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: January 14 , 2010 Parties Name Jarnail Singh ..PETITIONER VERSUS State of Punjab and others ...RESPONDENTS CORAM: HON'BLE MR.JUSTICE MUKUL MUDGAL,CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH. 1. Whether Reports of local papers may be allowed to see the judgment? 2. Whether to be referred to be Reports or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Arun Jain, Senior Advocate, with Mr. Vishal Goyal, Advocate, for the petitioner in CWP No. 9354 of 2007, for respondent No. 5 in CWP No. 9956 of 2002, and C.W.P. No. 9321 of 2008 and for respondent No. 3 in CWP No. 3262 of 2008. None for petitioner in CWP No. 9956 of 2002. Mr. Akshay Bhan, Advocate, for the petitioner in CWP No. 3262 of 2008 and for respondent No. 6 in CWP Nos. 9354 of 2007 and 9321 of 2008. None for the petitioners in CWP No. 9321 of 2008 and 19656 of 2001. Mr. Munish Jolly, Advocate, for the petitioners in CWP No. 5049 of 2008 and for the applicant Shyam Singh in CWP No. 3262 of 2008. Mr. H.S.Sidhu, Addl. A.G., Punjab, for respondent – State of Punjab in all the petitions. Mr. Sushant Batish, Advocate, for respondent No. 6 in CWP No. 19656 of 2001. None for respondent No. 9 in CWP No. 19656 of 2001. CIVIL WRIT PETITION NO. 9354 OF 2007 -2- MUKUL MUDGAL, CHIEF JUSTICE (oral) ORDER. This order shall dispose of Civil Writ Petitions No. 9354 of 2007, 3262 of 2008, 9956 of 2002, 9321 of 2008, 19656 of 2001 and CWP 5049 of 2008 as somewhat common questions of facts and law are involved in these writ petitions. The facts are being taken from Civil Writ Petition No. 9354 of 2007. The petitioner is a Panch of Gram Panchayat Manauli Surat, Tehsil Rajpura, District Patiala. Originally, he had filed this writ petition to lay challenge to the order dated March 3, 2006 (P-12), passed by the respondents. However, during pendency of this writ petition, the State Government issued Notification dated March 28, 2008, seeking to acquire rights in the Minor Minerals, mentioned in that notification. The petitioner was allowed to amend his petition to lay challenge to the above said notifications also. The State of Punjab upon noting disputes, regarding auction of Minor Minerals present in the Gram Panchayats land, between the Department of Rural Development and the Gram Panchayat, issued directions vide letter dated March 3, 2006, the contents of which read as under: “Government has decided that until the final decision regarding auction of Minor Mineral present in the Panchayat lands between the Department of Rural Development and Panchayat and Industries Department along with required amendment in rules is taken, the auction of minor minerals present in all the Gram Panchayat lands throughout the State shall be conducted CIVIL WRIT PETITION NO. 9354 OF 2007 -3- by the Industries Department, Punjab. The Industries Department shall pay 50% of the income received from the auction of minor mineral present in Panchayat lands to the concerned panchayat.” A perusal of the record reveals that with a view to crystalize rights of the parties in the minor minerals in the State of Punjab, the competent authority issued a notification on March 28, 2008 (P-13), by virtue of which powers confered by Sub-Section (1) of Section 3 of Punjab Minerals (Vesting of Rights) Act, 1994 (Punjab Act No. 9 of 1996) (in short the 1994 Act) read with Government of India, Department of Mines and Fuel, Ministry of Steel, Mines and Fuels and Ministry of Mines and Minerals (Department of Mines), Notifications Nos. MII-II-159 (18) 54 A-II dated the 1st June, 1958 and G.S.R. 95(E) dated the 3rd February, 2000, the Punjab Government sought to acquire the rights qua the following minerals in the State of Punjab: i) Building Stones (Boulder) ii)Gravel (Bajri), iii)Oridinary clay, iv)Ordinary sand other than sand used for prescribed purposes; v) Shingle vi)Chalcedony or impure quartz and pebbles when used for ball mills purposes or filling for bore wells or for decorative purposes in buildings. vii)Limeshell Kankar and Lime Stone when used in Kilns for manufacturing of lime used as building material, CIVIL WRIT PETITION NO. 9354 OF 2007 -4- viii)Murrum ix)Brick Earth x) Fullers Earth xi)Bentonite xii)Road Metal xiii)Reh Matti xiv)Shale when used for building material, xv)Stone when used for house hold utensils, xvi)Quartzite and sand stone when used for purposes of building or for making road metal and house hold utensils. xvii)Salt peter, xviii)Ordinary Earth when used for filling or levelling purposes in construction of embankments roads, railway and xix)Building Materials.” This Court is of the opinion that in view of issuance of subsequent notification on March 28, 2008 (P-13), challenge of the petitioner to the instructions issued vide letter dated March 3, 2006 (P-12) has become superfluous and need not be gone into. Mr. Arun Jain, learned Senior counsel for the petitioner has contended that the above notifications are ultra vires to the provisions of the Land Acquisition Act. Even though the prayer made in the writ petition is merely for striking down the notifications, we have permitted Mr. Jain to argue on the above plea of ultra vires also. The main thrust of submission of Mr. Jain, in support of the above plea, was that since Section 3 of Punjab Minerals (Vesting of Rights) CIVIL WRIT PETITION NO. 9354 OF 2007 -5- Act, 1994 (in short the 1994 Act) effectively denies user of land to the petitioner(s)/Gram Panchayat, it in fact amounts virtually to compulsory acquisition of land and thus these provisions are ultra vires the provisions of Land Acquisition Act. He pointed out various provisions of Section 3 of the 1994 Act to contend that this enactment made serious inroads into owner's right to occupy and enjoy the land and, therefore, in fact the proper course for the respondents would have been to acquire the land in question and pay compensation for the acquired land to the petitioner. On the other hand, learned counsel for the respondent – State of Punjab contended that vires of Haryana Minerals (Vesting of Rights) Act, 1973 (in short the 1973 Act), which is para materia and analogous to the present one, have already been upheld by the Hon'ble Supreme Court in State of Haryana and another v. Chanan Mal etc., AIR 1976 Supreme Court 1654, therefore, the contention raised by learned counsel for the petitioner to the vires of Sections 3 and 4 of the 1994 Act no more survive. To appreciate the contentions, raised by learned counsel for the petitioner, it is expedient to reproduce the provisions of Sections 3 and 4 of the 1994 Act, which are to the following effect:- “Vesting of minerals in State Government:- 3 (1)The State Government may, from time to time, by notification acquire the right to the minerals in any land and notwithstanding anything contained in any law for the time being in force, from the date of publication of the Notification the right to the minerals in the land specified in the notification shall vest absolutely in the State Government and the State Government shall subject to the provisions of CIVIL WRIT PETITION NO. 9354 OF 2007 -6- the Mines and Minerals (Regulation and Development Act) 1957 (Central Act No. 67 of 1957), have all the powers necessary for the proper enjoyment or disposal of such rights. (2)If the State Government has assigned to any person its right to the minerals in any land, and if for the proper enjoyment of such right, it is necessary that all or any of the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub section (1) should be exercised, the Collector may, by an order, in writing, subject to such conditions and reservations as he may specify, delegate such powers to the person to whom the right has been assigned.” “Section-4. Payment of amount:- (1) On the vesting of the right to the minerals in any land under Section 3 , the person entitled to the right to the minerals in any land immediately before such vesting shall be paid annually, in the manner prescribed, an amount equal to ten per cent of the annual contract money or of royalty or dead rent, which ever is higher, payable to the State Government on minerals raised in a year, for a period of ten years with effect from such vesting: Provided that if no contract or lease is given or the lessee does not raise the minerals for any period, no amount shall be paid for that period and the aforesaid period of ten years shall be deemed to have been extended by that period. Provided further that the payment of the amount shall commence after the expiry of one year from the date of CIVIL WRIT PETITION NO. 9354 OF 2007 -7- commencement of the period of contract or lease as the case may be. 2) The Collector shall announce in the manner prescribed an order specifying the persons or persons to whom the amount shall be paid. 3) If there is any dispute as to the person or persons who are entitled to the payment of amount, the Collector shall by an order decide the dispute and if he finds that more than one person is entitled to the amount, he shall apportion the amount among such persons;” In so far as the issue of acquisition of land is concerned, or the adoption of the route under the Punjab Minerals Act is concerned, that is for the State Government to decide. The only issue which requires consideration is about the vires of Section 3 of the 1994 Act while testing it as violating the provisions of the Land Acquisition Act. The above section clearly shows that an amount equal to 10% of annual contract money or royalty or dead rent would be payable by the State Government to the person / owner concerned in case the minerals are raised in a year, otherwise, the petitioner/ owner of land is free to enjoy the land if his rights have not been restricted. The action taken under the aforesaid notifications in no case can amount to compulsorily acquisition of land or be termed ultra vires to any of the provisions of the Land Acquisition Act. Even at present, no mining operations are going on. It was also so held by the Hon'ble Supreme Court in Bhagwan Dass v. State of U.P. and others, AIR 1976 Supreme Court 1393. In that CIVIL WRIT PETITION NO. 9354 OF 2007 -8- case, rights of the land owners viz-a-viz rights of the State of U.P. to extract minor minerals, sand, gravel etc. from the land owned by the private owners was under consideration. While interpreting the provisions of U.P. Minor Minerals (Concession) Rules, 1963, the Supreme Court held that the owner of the land was entitled only to get compensation as provided under the Rules. In that context, it was observed as under: “14. When the right to conduct a mining operation is auctioned by the Government the person who is otherwise entitled to the user of the land say for agricultural purposes, is deprived of its user and the object of Rule 67 is to ensure that he should be compensated adequately for the deprivation of such user.” In the present case, there is no question of any compulsory acquisition for taking out the minor minerals. A reading of Sections 3 and 4 of the 1994 Act shows that acquisition of the rights in the minor minerals by the State in the land of a concerned owner only gives right to the Government to extract the minor minerals. The owner may be deprived from user of the land for a limited period. For that, provision has been made for payment of compensation. As such it is clear that acquisition of rights in the minor minerals by the State do not have such consequences on the rights of the land owners so as to invalidate the Act. Confronted with the situation, as mentioned above, learned counsel for the petitioner submitted that the land was leased out by the Gram Panchayat in favour of respondent No. 3 and lease right accrued in his favour cannot be curtailed by issuance of the impugned notification. This Court is of the view that it is not open to the petitioner to propagate the case of the respondent, who himself has filed Civil Writ Petition No. 3262 CIVIL WRIT PETITION NO. 9354 OF 2007 -9- of 2008, wherein challenge was that the rights acquired by him from the Gram Panchayat were being interfered with by the State Government. He has referred to some writ petition, which was disposed of by this Court permitting respondent No. 3 to approach the State Government by way of a representation raising his grievances. He has further submitted that the said representation resulted in cancellation of the lease of respondent No. 3 rather than granting any relief to him. Since we have already found that the rights of the petitioner are secured as per the provisions of Sections 3 and 4 of the Act and have not found merit in the challenge to the vires of those Sections violating the provisions of the Land Acquisition Act, we are enable to accede to the request of respondent No. 3. Respondent No. 3 has acquired his rights through the Panchayat, on whose behalf this petition has been filed. Even otherwise a private contract between the parties cannot defeat the impact of a Statute. Furthermore, in Chanan Mal's case , the vires of an analogous provisions contained in the 1973 Act regarding power of the State Government to acquire rights in the minor minerals were upheld by the Hon'ble Supreme Court . In that case the Hon'ble Supreme Court was adjudicating upon rights of the Central Government under the Central Act, i.e., Mines and Minerals (Regulation and Development ) Act, viz-a-viz powers of State of Haryana to acquire rights in the minor minerals. After analysing the provisions of the Central Act and the Rules framed by the State of Haryana, it was held that there was no repugnancy and both can operate in their respective fields. It was observed as under: “33. We are particularly impressed by the provisions of CIVIL WRIT PETITION NO. 9354 OF 2007 -10- Sections 16 and 17 as they now stand. A glance at S. 16(1)(b) shows that the Central Act 67 of 1957 itself contemplates vesting of lands, which had belonged to any proprietor of an estate or tenure holder either on or after 25th October, 1949, in a State Government under a State enactment providing for the acquisition of estates or tenures in land or for agrarian reforms. The provisions lay down that mining leases granted in such land must be brought into conformity with the amended law introduced by Act 56 of 1972. It seems to us that this clearly means that Parliament itself contemplated State legislation for vesting of lands containing mineral deposits in the State Govt. It only required that rights to mining granted in such land should be regulated by the provisions of Act 67 of 1957 as amended. This feature could only be explained on the assumption that Parliament did not intend to trench upon powers of State Legislatures under Entry 18 of List II. Read with Entry 42 of List III. Again Section 17 of the Central Act 67 of 1957 shows that there was no intention to interfere with vesting of lands in the States by the provisions of the Central Act.” In the light of observations made above, no case is made out for interference in this writ petition at the instance of the petitioner. Consequently, this writ petition and CWP No. 3262 of 2008 fail and the same are dismissed. CWP No. 5049 of 2008: CIVIL WRIT PETITION NO. 9354 OF 2007 -11- Auction notice dated February 20, 2008, was challenged inter alia on the grounds that the conditions laid down in the auction notice are in conflict and the mining by mechanical process has been prohibited and that the auction being sought to be conducted is in violation of the auction notice itself and lastly that the contentions laid down in the auction notice are arbitrary. Mr. Munish Jolly, learned counsel appearing on behalf of the petitioners failed to justify the grounds taken in the petition. Moreover, the auction period was for two years which would end on March 28, 2010. At this stage, nothing survives in this writ petition, which is also dismissed. CWP No. 19656 of 2001: This petition has been filed by a highest bidder seeking a mandamus to Superintendent of Police, Patiala to ensure that respondents No. 4 and 5 do not harass the petitioner and not to interfere in the peaceful mining work being carried out by the petitioner. No body has put in appearanceon behalf of the petitioner to address the issues. Accordingly, this writ petition also fails and is hereby dismissed. CWP No. 9956 of 2002 This petition has been filed by a highest bidder wherein he has challenged order dated May 22, 2001, whereby a restraint order with regard to the auctioning of the land in dispute was issued by the Collector / Divisional Deputy Director, Rural Development Panchayat, Patiala. Nobody has put in appearance to pursue this petition, which is accordingly dismissed. CWP No. 9321 of 2008: In this petition, the petitioners have challenged grant of lease of CIVIL WRIT PETITION NO. 9354 OF 2007 -12- the mining minerals from the quarry of village Manauli Surat in favour of respondent No. 6 and further prayed for re-auctioning of the quarry in an open auction. No one has put in appearance to pursue this petition. This petition also fails and is hereby dismissed. (MUKUL MUDGAL) CHIEF JUSTICE (JASBIR SINGH) JUDGE January 14, 2010. ravinder/DKC