Case: Ashok Kumar Lingala Vs. State Of Karnataka

Land measuring 4.42 hectares situated at village Devagiri, Sandur Taluk, Bellary District falling under Surveys No. 56/P, 57/P, 58/P and 91/P was according to the appellant dedicated to Kumaraswamy Devaru Temple. The entire extent of land which now falls in new Survey No.27 was given to one-Pennaiah S/o Dodda Pennaiah for cultivation in lieu of the services which he was rendering to the temple. With the enactment of the Karnataka (Sandur Area) Inam Abolition Act, 1976 abolishing all rights in inam lands and permitting the cultivators and tenants of the land to make applications under Section 10 of the Act for re-grant and registration, the cultivator-Pennaiah also made an application to the Land Tribunal, Sandur Taluk, Bellary District seeking a re-grant. The said application eventually culminated in the Tribunal passing an order dated 22nd October, 1981 granting occupancy rights in favour of the tenant, pursuant whereto the Tehsildar issued a registration certificate registering his occupancy rights and entering his name in the record of rights.4. The appellants further case is that Pennaiah continued to cultivate the land personally especially when neither the order of re-grant was challenged before the Land Tribunal nor his cultivation objected to by anyone including the 3rd respondent who held a lease in respect of Government and forest land situate in Sandur Area. The appellant asserts that the land aforementioned is a piece of private patta land that was held by Pennaiah during his life time and by his widow Yellamma after his death. Neither Pennaiah nor Yellamma had in their capacity as Pattadars in cultivating possession of the land ever offered the property to SIMORE or granted any right or any other interest in its favour. On the contrary Yellamma in her capacity as Pattadar had permitted the appellant to obtain a mining lease under the provisions of Minor Mineral (Development and Regulation) Act, read with Mineral Concessions Rules, 1960 which application was sent to the Deputy Commissioner, Bellary District, to verify the status of the land and also to the Deputy Director of Mining and Geology for conducting an actual spot inspection. Both the authorities had, according to the appellant, submitted their respective reports in which the said property was found to be private Patta land. They had, therefore, offered no objection to the grant of a mining lease qua the same.5. It was on the basis of the reports aforementioned that the State Government had sought the approval of the Central Government for the grant of a mining lease in favour of the appellant which approval was upon due and proper consideration granted by the Central Government. The State Government had pursuant thereto issued a Notification dated 15.1.2010 sanctioning a mining lease over an area of 4.42 hectares situate in Devagiri Village Sandur Taluk Bellary Distt., as per the sketch furnished by the Director Department of Mines and Geology. Boundaries of the area in question were fixed for an extent of 3.36 hectares in terms of letter dated 2.2.2010 issued by the Deputy Director Mines and Geology, Hospet and a lease deed executed and registered with the Sub-Registrar under ML No.2622.6. The appellants case is that when he started the mining activities in exercise of his right under the lease -aforementioned, the Director of Mines and Geology, Government of Karnataka issued a communication dated 5th March, 2010 by which the appellant was restrained from conducting any such activities on the ground that the area covered by the lease granted to the appellant overlapped the area stated to have been granted to the SIMORE respondent no.3 herein. On receipt of the said letter the appellant filed an application to the Director of Mines and Geology objecting to the order and pointing out that the same had been passed without issuing to the appellant any notice or granting to him any opportunity of being heard in the matter. The appellant also represented to the State Government against the direction issued by the Director of Mines and Geology and asserted that even when 3rd respondent SIMORE had filed a Civil Suit in the Court of Civil Judge (Senior Division) Kudligi and prayed for an injunction no such injunction had been issued by the said Court. The Director of Mines was not, therefore, justified in issuing an injunction which the Civil Court had not issued; on the very same factual matrix. The restraint order issued by the Director of Mines and Geology continued to remain in force despite the objections raised by the appellant. As a matter of fact, the Director of Mines wrote a letter dated 25.5.2010 to the appellant saying that order dated 5.3.2010 stopping mining operations could not be vacated or modified. The appellant was in that backdrop forced to approach the High Court of Karnataka at Bangalore in Writ Petition No.17281 of 2010 challenging the said order/communication on several grounds and praying for a direction to the respondent to refrain from interfering with the mining activities of the appellant which the lease deed authorised him to carry out. Respondent no.3, SIMORE filed Writ Petition No.18043 of 2010 challenging the very grant of the mining lease in favour of the appellant. The said two writ petitions were finally disposed of by the High Court in terms of a common order dated 1st September, 2010 impugned in the present appeals.7. Relying upon the orders passed by the Director, Department of Mines and Geology dated 5th March, 2010 and 25th May, 2010, the High Court concluded that there was overlapping of areas held by the appellant and SIMORE under their respective lease deeds. The High Court held that the appellant had not been in a position to produce any evidence to show that the conclusion drawn by the Director of Mines regarding overlapping of the areas was erroneous.The High Courtpermitted learned counsel for Ashok Kumar Lingala to examine the same. Even therefrom, learned counsel representing Ashok Kumar Lingala could not repudiate the finding of fact recorded in the two impugned orders.xxx xxx xxx xxx xxxxxx xxx xxx xxx xxx15. From the two orders issued by the Director, Department of Mines & Geology dated 05.03.2010 and 25.05.2010, we have no other alternative or hesitation but to conclude, that `M/s Simore had been granted a mining lease, in respect of the same land, well before Ashok Kumar Lingala was awarded the mining lease. That being so, the claim of Ashok Kumar Lingala could not have been considered for grant of a mining lease over the area which comprised of part of the mining lease already granted to `M/s Simore, as the application of Ashok Kumar Lingala was bound to be treated as a premature application. This inference is inevitable from a collective reading of rules 59 and 60 of the Mineral Rules, and Section 24A of the Mines and Minerals Act."Having held that there was an overlapping of the areas covered by the two leases, the High Court interpreted the rules to record a finding that even when the area leased to SIMORE may include private land owned by Smt. Yallamma - and even when Yallamma has not granted any surface rights to it, SIMORE could undertake mining activity in the private area by paying compensation to Yallamma before undertaking such activities. The High Courtthe issue whether `M/s Simore could carry out mining activities over the land owned by the private owner Smt. Yallamma, the provisions relied upon by the learned counsel representing `M/s Simore leave no room for any doubt, that in case mining activity is carried out by `M/s Simore over private land, compensation will have to be paid by `M/s Simore to the private land owner under rule 72 of the Mineral Rules. But the submission of this learned counsel representing Ashok Kumar Lingala, also leave no room for any doubt, that `M/s Simore, in spite of the grant of a mining lease covering private owned land, would not be in a position to unilaterally and arbitrarily conduct mining activities thereon without the consent/permission of the land owner Smt. Yallamma. The instant conclusion is based on the second proviso under rule 22(3) (i) (h) of the Mining Rules which mandates, that unless permission/authorization is granted by the land owner, mining activity cannot be carried out. Even if it is assumed, that prior consent of the land owner was not obtained by `M/s Simore before obtaining the lease deed from the State Government, still the second proviso under rule 22(3) (i)(h) of the Mining Rules extracted above, mandates that, prior to entering into private owned land for mining activities, permission from the land owner is a necessary pre- requisite.What followed the above two findings, one touching the question of overlapping of the lease areas and the other dealing with the effect of the overlapping qua privately owned land, is interesting. The High Court took a - somersault and held that the question of overlapping could not be decided by it authoritatively and left the same must be decided by the Civil Court on the basis of evidence adduced before it. Itviewed, it is not possible for us to record any concrete finding on the factual aspect of the matter. We have noticed hereinabove, that a civil suit is pending between the parties. It will be open to the rival parties to lead evidence therein, if they are so advised, to determine the specific identity of the property over which mining leases have been granted to them. In case such evidence leads to the conclusion, that the land over which mining leases have been granted to the rival parties, do not overlap, then both of them would be entitled to carry out mining activities, under the lease agreements executed by the State Government in their favour. In case the factual finding is to the contrary, then on account of the conclusions drawn hereinabove, the earlier licensee will have to be granted the superior right to exclusively carry out mining activities. As such, `M/s Simore shall have a preferential right over Ashok Kumar Lingala. In such an eventuality, no interference will be called for with the impugned orders dated 05.03.2010 and 25.05.2010."

Reasoning:
18. We may at this stage advert to another submission made by Mr. Dave that the Director (Mines) could not have stopped the mining operations of the appellant on the basis of what was according to Mr. Dave a frivolous complaint filed by SMIORE that alleged overlapping of the lease areas. He contended that a valid lease having been granted to the appellant after following the requisite formalities and the procedure prescribed under the relevant rules and after proper demarcation of the privately held area that was available for mining, the Director should not have on a sketchy report from the Drawing Section of the Department stopped the mining activities. It was further contented by Mr. Dave that since the mining activity had been stopped under the orders of the Director (Mines), the High Court was in error in not only upholding the said direction but extending their efficacy till such time the dispute between the parties was resolved by the Civil Court.19. The mere pendency of a suit in a Civil Court could not be an impediment for the appellant to start or continue his mining activity, unless there was an injunction restraining - him from doing so. No such injunction has been issued by the Civil Court. That does not, however, mean that the Government or the Director (Mines) for that matter could not in the event of any dispute between the appellant and SIMORE regarding the identity and demarcation of the area leased to both of them direct the appellant to refrain from carrying on the mining activity as an interim measure till such time the issue was sorted out. But once such an interim direction was issued, the authority doing so had to take steps to resolve the dispute. It could not let the dispute fester and result in a stalemate. So also the restraint order could not be continued by the High Court till the dispute was adjudicated upon by the Civil Court. Doing so would amount to one authority making an interim order pending a final order to be made by another. The power to make an interim order is, except where it is specifically taken away by the statute, implicit in the power to make a final order. It is exercised by the authority who has to make the final order or an authority exercising appellate or revisional jurisdiction, against an order granting or refusing an interim order. The exercise of the power implies that - the authority seized of the proceedings in which such an order is made will eventually pass a final order; the interim order serving only as a step in aid of such final order. The law, in our view, does not permit the making of an interim order by one authority or Court pending adjudication of the dispute by another except in the situation mentioned above. Ms. Shenoy was, therefore, right in her submission that the order of restraining mining operation was meant to be a temporary and interim arrangement meant to remain in force only till such time the Director (Mines) examined the issue regarding the alleged overlapping of the area and passed a final order on the subject.20. Ms. Shenoy was, however, unable to justify the restraint order passed by the Director (Mines) in the absence of the report of the Drawing Section which was the sole basis for the order passed by the Director (Mines). If the Drawing Section had indeed undertaken an exercise the same ought to have been disclosed to the High Court and to this Court so that the validity of any such exercise could be examined. Absence of the report said to have been - made by the Drawing Section and non-production of any material indicating the process by which the Drawing Section came to the conclusion that there was overlapping of the two areas, one privately owned and the other belonging to the State, lend support to the submission made by Mr. Dave that the order of restraint passed by the Director was made in haste. We do not, however, propose to dwell any further on this aspect nor do we propose to vacate the interim restraint order issued by the Director on the ground that it was based on material that was tenuous and remained un-substantiated before us. In our opinion the real problem lies in the demarcation of the two areas leased to the appellant on the one hand and SIMORE on the other. As observed earlier the ownership of the areas claimed by both the lessees vests in different owners. So long as the areas leased to them are identifiable on spot by different survey numbers and boundaries, there is no question of any overlapping. The confusion regarding boundaries in turn is a matter the answer to which lies only in a proper demarcation of the areas.21. It was submitted by Mr. Dave that dispute between the appellant and SIMORE has considerably delayed the mining activity of the appellant, and that a direction ought to be issued to the authorities to expedite the process of demarcation. He urged that keeping in view the bad blood generated between the parties it would be more appropriate to entrust the entire process of demarcation and identification of the leased areas to the Geological Survey of India. We, however, see no reason to issue any such direction at this stage. While the appellant may have some apprehensions about the fairness of the officers of the concerned department we do not consider them to be sufficient for us to mistrust the State functionaries in the absence of any material to suggest that there is any real likelihood of bias. That does not mean that the process of identification and demarcation of the area leased to the appellant should not be undertaken by senior level officers of the State Government to ensure that there is no scope for any mischief or miscarriage of justice.