Girish Chandra Vs. District Judge and ors. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]v.k. bist, j.1. present petition has been filed by the petitioner challenging the judgment and order dated 08.10.2009 passed by the learned district judge, champawat and the order dated 23.06.2008 passed by the prescribed authority/sub divisional magistrate, sri poornagiri, tanakpur. the petitioner has also sought a writ of mandamus directing the respondents not to take any coercive measures and not to evict the petitioner from the shop in question. the petitioner has further prayed for a writ of mandamus directing the respondents not to demolish the construction set up by the petitioner on the land in dispute.2. brief facts of the case, interalia, are that a large number of persons, including the petitioner, have set up and constructed wooden shops and tin shades by the side of the road heading to the temple of goddess poornagiri from thuligarh to poornagiri temple situated at tuniyas in tehsil and district champawat. as many as 40 to 50 wooden shops and tin shades have been constructed by the side of the road approaching to the said temple. it is averred in the petition that in the said stall the petitioner is carrying on business of selling the pooja samagri, sweets and also offering drinking water to the pilgrims. the pilgrims have to take rest after covering a distance of one or two kilometers and the said shopkeepers have, therefore, constructed tin shades in which the pilgrims take rest, during the rains or hail storm. in his ten shade, the petitioner also provides shelter to the pilgrims, as there is no other covered building by the side of this road constructed by public works department. the petitioner has made a wooden shop and tin shade in an area of 199 squire meter over the land in dispute. it has been further asserted that the land in dispute belongs to zila parishad for which the zila panchayat was charging rent from the shopkeepers sometime in the form of rent and sometime as mela fee. the public works department has constructed kaccha road in the year 1993-94 which passes through the land on which the petitioner has constructed wooden stall. it has been further stated that since the shop in question was constructed by the petitioner in the land for which he is paying rent to the zila panchayat, therefore the forest department has no authority to get his shop demolished, particularly when the zila panchayat has been regularly charging rent from the petitioner. it has been further stated that the wooden shop and the tin shade constructed by the petitioner is not causing any obstacle on the hill road as the same has not been constructed on the road. after the forest department approached to the prescribed authority for getting the petitioner evicted from the land in question, a notice was issued to the petitioner under section 4 (1) of the u.p. public premises (eviction of unauthorized occupation) act, 1972 (hereinafter referred to as the 'act') by the prescribed authority asking the petitioner to show cause as to why he may not be evicted from the land in dispute. a case thereof was also registered against the petitioner. thereafter, vide order dated 23.06.2008 the prescribed authority passed order evicting the petitioner from the land in dispute. aggrieved with the order of eviction, the petitioner preferred eviction appeal before the district judge, champawat and vide order dated 08.10.2009 passed in the eviction appeal the appeal was also dismissed and the order dated 23.06.2008 passed by the prescribed authority/sub divisional magistrate, sri poornagiri, tanakpur was affirmed. being aggrieved with both these orders, the petitioner has filed the instant petition.3. a counter affidavit has been filed on behalf of the respondent nos. 4 & 5, which has been sworn in by sri s.p. singh, divisional forest officer, champawat, forest division in which the deponent stated, on oath, that purnagiri devi temple situates in the forest area at the peek of a hill at a distance of about 10 kms. from thuligarh and not in the place know as tuniyas. it has been admitted that though motorable road has been constructed upto bhairav temple, but during festival season vehicles are allowed upto thuligarh only from where the devotees have to reach the temple on foot. it has also been admitted that during festival season, some persons temporarily install their stalls for selling pooja samagri by the side of the road leading to the poornagiri temple, however some persons have placed their stalls permanently which amounts to encroachment by the side of the road. the road, by the side of which the petitioner has erected stall, plunges in the forest area and no land belonging to zila parishad is there by the side of the road. this road also does not belong to public works department, but it situates in the forest area. it has further been stated in the counter affidavit that if, in case, the zila panchayat has realized any amount from the shopkeepers as mela fee or rent, the same is wholly unauthorized and illegal. the encroachers, like the petitioner, have encroached upon the forest land by installing their shops, therefore the forest department has started clearing the same. the petitioner cannot continue his illegal act of encroachment over the forest land alleging hardship to pilgrims. the petitioner has never raised the plea either before the prescribed authority or before the appellate authority that the land over which he has installed his shop belongs to zila panchayat. the petitioner has never claimed his title before the zila panchayat. no documentary evidence was produced by the petitioner, whatsoever, in support of his contention that the disputed land belongs to zila panchayat. the petitioner has only admitted his possession over the land in dispute and he never claimed his ownership. it is stated that the petitioner has also not produced any documentary evidence showing that the land is not the forest land, on the other hand the entire area had been declared as the forest land vide notification dated 8th june, 1932. lastly, it is stated in the counter affidavit that since the petitioner had been an unauthorized occupant, as such, he was liable to be evicted from the land in dispute and has rightly been ordered to be evicted from the land in dispute.4. i have heard the sri prabhakar joshi advocate and sri b.s. negi, the learned counsel for the petitioner and sri sudhir kumar, the learned brief holder for the state and perused the record.5. learned counsel for the petitioner first of all has submitted that the petitioner is in possession of the land in dispute since long and is regularly paying rent to zila panchayat either in the form of mela fee or as an annual rent. he contended that the forest department is not the owner of the land in dispute. he argued that neither any opportunity was given to the petitioner before the prescribed authority for producing any documents in support of his statement, nor the zila panchayat was afforded any opportunity with regard to ownership of the land in dispute. mere admitting that the petitioner is in possession of the land does not mean that the land belongs to the forest department, therefore the courts below have erred in holding that the petitioner is an unauthorized occupant. the forest department failed to prove before the courts below that the land in dispute belongs to it. it has been argued that the disputed construction is not causing any obstacle on the hill road beyond tuniyas and the petitioner is still willing to pay rent to the zila panchayat as the land in dispute belong to zila panchayat. he further argued that the panchayat has not given any notice for terminating his tenancy. the petitioner is in occupation of the land for the last 30 years. since tenancy of the petitioner has not been terminated, the forest department is not entitled to eliminate his construction. he argued that the respondents may be restrained from demolishing or removing the shop in question.6. perusal of the record reveals that the petitioner has nowhere claimed his ownership over the land in dispute. on the other hand the entire area had been declared as the forest land vide notification dated 8th june, 1932. eviction of the petitioner has been done invoking section 4 (1) of the 'act', therefore, before entering into the merits of the case it is pertinent to refer the relevant section of the act.4. issue of notice to show cause against order of eviction:(1) if the prescribed authority either of its own motion or on an application or report received on behalf of the state government or the corporate authority, is of opinion that any persons are in unauthorized occupation of any public premises and that they should be evicted, the prescribed authority shall issue a notice in writing in calling upon all persons concerned to show cause why an order of eviction should not be made.7. perusal of the record further reveals that divisional forest officer, boom forest division, south pithoragarh forest division submitted its report to the prescribed authority, lohaghat, district champawat about the encroachment done by the petitioner with the request for his eviction from the land in dispute, alongwith the report a map of the site was also appended. on the basis of said report the prescribed authority issued a notice to the petitioner under section 4 (1) of the 'act' in the eviction proceedings. both the parties led their evidence in the eviction proceedings. having heard the learned counsel for the petitioner, the learned prescribed authority passed order on 23.06.2008 evicting the petitioner from the land in dispute with the observation that there is nothing on record which may prove ownership of the petitioner over the land in dispute. the appellate court also noticed the fact that the land in dispute has been notified and the same has been declared as the forest land. the petitioner is not recorded as bhumidhar or abadkar in the revenue records over the land in dispute. paying rent or mela fee to the zila panchayat as tahbazari or ownership of the zila panchayat over the land in dispute is immaterial. the petitioner also does not claim himself to be the owner, therefore, there vests no right to an unauthorized occupant against the true owner. the unauthorized occupant accrues no legal right over the land for his regularization. the appellate court has given categorical findings that the petitioner has failed to prove his legal title as well as his legal possession over the land in dispute. the witness produced by the state before the trial court has also described measurement of the encroached land and its description. both the court's below has given concurrent findings that to prove his ownership over the land in dispute, the petitioner failed to produce any documentary evidence despite affording opportunity. similarly, no right accrues to the petitioner simply submitting receipts of electric consumption issued by the uttarakhand power corporation.8. upon overall appraisal of the material available on record and after hearing arguments advanced by the learned counsel for the parties, i do not find any illegality, infirmity or perversity in the orders passed by the courts below. consequently, the writ petition fails and is liable to be dismissed.9. accordingly, the writ petition is dismissed. interim order dated 25.01.2010 passed by this court stands vacated.10. costs easy.