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1996 DIGILAW 1228 (RAJ)

Anand v. Sarda

1996-11-01

P.C.JAIN

body1996
Honble JAIN, J.–This is plaintiff-petitioners revision petition under Sec. 115 C.P.C. against the order of Addl. Distt. Judge No. 1, Jodhpur dated 6.8.96 by which the learned Addl.Distt. Judge partly allowed the appeal and modified the interim order passed by the learned Civil Judge (Jr. Div.), Jodhpur. (2). The relevant facts are as follows. The plaintiff-petitioner filed a suit for per- manent injunction against the non- petitioners-defendants before the learned Civil Judge (Jr.Div.), Jodhpur with the averments that the Mining Deptt. granted mining lease in respect of mine no. 495 and the plaintiff also deposited lease charges upto the period 30.6.97. It as alleged that non- petitioner Smt. Sarda Devi was creating obstruction in the mining operations undertaken by the plaintiff and the plaintiff apprehended dispossession. He, therefore, prayed that the defendant Sarda Devi may be restrained from offering any obstruction or dispossessing him from the said mine. The plaintiff also claimed possession over the said mine. Alongwith the suit, the plaintiff also filed an interlocutory application under Order 39, Rules 1 and 2 CPC. (3). The defendants have so far not filed the written statement, but Sarda Devi, non-petitioner resisted the application. The learned Civil Judge, after hearing both the parties and perusing the documents and material available on the record, felt persuaded to grant temporary injunction in favour of the plaintiff in respect of mine no. 495. Non-petitioner Sarda Devi felt aggrieved and preferred an appeal before the learned Addl. Distt. Judge which was partly allowed as aforesaid by the learned Addl. Distt. Judge by the impugned order. (4). I have heard learned counsel for the petitioner and the non- petitioner Sarda Devi. (5). It was contended by the learned counsel for the petitioner that the order passed by the learned appellate court is wholly erroneous inasmuch as learned appellate court lost sight of the fact that the lease hs been renewed in favour of the petitioner upto 30.6.97 by an order of the Mining Deptt. dated 27.6.96. He further submitted that under Rules 16 and 31 of the Rajasthan Mining & Mineral Concession Rules, 1986, (for short `the Rules), no transfer of mining lease is permissible unless previous consent in writing of the competent authority of the Mining Deptt. is obtained by the transferee. dated 27.6.96. He further submitted that under Rules 16 and 31 of the Rajasthan Mining & Mineral Concession Rules, 1986, (for short `the Rules), no transfer of mining lease is permissible unless previous consent in writing of the competent authority of the Mining Deptt. is obtained by the transferee. Since no such prior written permission was produced by non-petitioner Sarda Devi, she cannot be said to have any right, title or interest in respect of the above mine. (6). Learned counsel for the non-petitioner, Sarda Devi, has submitted that Sarda Devi has already spent a sum of Rs. 60,000/- on the said mine. The petitioner made an agreement for transfer of the lease rights in her favour by written agreement for a sum of Rs. 1,00,000/-. Out of the above consideration, a sum of Rs. 50,000/- was paid immediately and the remaining Rs. 50,000/- were to be paid after- wards but before 17.8.96. The non-petitioner, therefore, alleged that the petitioner wanted to defraud the plaintiff of the above money. The non-petitioner also claimed that she is in possession of the above mine. This fact was corroborated by the report of the Commissioner. (7). I have considered the rival contentions and perused the record. Learned counsel for the petitioner has shown me the renewed lease granted in his favour upto the period 30.6.97. The lease was renewed by the authorised authority on 27.6.96. The petitioner is, therefore,lawful lessee of the above mine and under the above Rules he has got the legal right to operate the said mine. The fact that the petitioner allegedly obtained some loan from non-petitioner Sarda Devi has got no relevancy inasmuch as she can only acquire rights over the said mine as a result of transfer if the same is in consonance with the provisions contained in Rules 15 and 31 of the said Rules. It would be pertinent to refer to the relevant portion of the Rules 15 and 31 of the said Rules. It would be pertinent to refer to the relevant portion of the Rules 15 and 31 of the said Rules. Rule 15 Provides : ``(1) The lessee shall not without the previous consent in writing of the competent authority : (a) assign, sub-let, mortgage, or in any other manner transfer the mining lease or any right, title or interest therewith, or (b) enter into or make an arrangement, contract or understanding whereby the lessee will or may be directly or indirectly financed to a substantial extent by, or under which the lessees operations or undertakings will or may be substantially controlled by any person or body of persons other than lessee: Provided that the lessee, may, with the previous sanction of the State Government and subject to the condition specified in Rule 11(2) transfer whole area of his lease to a person on payment of the Government dues outstanding against the lessee in respect of the lease to be so transferred or against the transferee and the lease has remained in force for at least two years from the date of grant. Rule 31 provides : ``(1) A quarry license may be transferred with prior approval of the competent authority after a period of one year from its commencement to a person belonging to the same category as that of the license, on payment of a transfer fee of Rs.250/-. Provided that transfer of a quarry licence shall not be allowed where the quarry has not been worked. (2) An application for transfer of quarry licence shall be disposed of within a period of 3 months : Provided that if an application for transfer of quarry licence is not dis- posed of within the aforesaid period, it shall be deemed to have been refused. (8). A perusal of the above rules shows that a mining lease can be transferred by the allottee to another person. However, the previous written consent of the competent authority is a sine qua non for clothing such transferee with legal autho- rity. Similarly, Rule 31 authorises transfer of a quarry licence under certain conditions. The first requirement is that prior approval of the competent authority must be obtained and secondly it can be done after a period of one year from the commencement of the period of licence and thirdly the quarry must have been worked. Similarly, Rule 31 authorises transfer of a quarry licence under certain conditions. The first requirement is that prior approval of the competent authority must be obtained and secondly it can be done after a period of one year from the commencement of the period of licence and thirdly the quarry must have been worked. Admittedly, in the instant case, non-petitioner Sarda Devi has not complied with the mandatory requirement either of Rule 15 or Rule 31 of the said Rules. The agreement to transfer the above lease without complying with the provisions of Rules 15 and 31 has got no legal sanction and it will not confer any right, title or interest on the non-petitioner to operate the said mine. (9). The learned appellate court was, therefore, wrong in depriving the petitioner from operating the said mine for which he had a valid renewed licence upto the period 30.6.97. (10). For the above reasons, I allow the revision petition, set aside the impugned order and restore that of the learned trial court. No order as to costs.