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2005 DIGILAW 2650 (RAJ)

Prakash Chand Jain v. State of Rajasthan

2005-09-30

R.S.CHAUHAN, V.K.BALI

body2005
Honble BALI, J.–The appellant, who was petitioner in the original lis, aggrieved of allotment of land entered in Khasra No. 1245 to the Police Department over which, it is his case, he was granted mining lease for a period of twenty years, filed civil writ petition which has since been dismissed by the learned Single Judge of this Court by orders dated 9.9.1996 recorded in Writ Petition No. 6552/1994. (2). Learned Single Judge, not only declined relief to the petitioner but even held that the land in question being pasture land could not have been leased out by the Mining Department to him. Aggrieved of the order passed by the learned Single Judge, the petitioner has filed this appeal under Ordinance 18 of the Rajasthan High Court Ordinance, 1949. (3). Mr. M.M. Ranjan, learned counsel appearing for the appellant has raised two fold contentions in support of this appeal. It is first urged by him that the Government had passed various orders according to which it was enjoined upon the revenue authorities not to interfere in the mining operations being carried out in Charnot areas under a valid mining lease as per the agreement executed with the Mining Department. Orders relied upon have been placed on record as Annexure-2, 3 and 4. The second and last contention of the learned counsel is that the only question that was required to be determined by the learned Single Judge was as to whether the Police Department could have been allotted land which was subject matter of mining lease to the appellant for a period of twenty years and not that as to whether the lease granted to the appellant was valid or invalid. (4). With a view to appreciate the contentions of the learned counsel, as noted above, it would be necessary to take into consideration the bare minimum facts of the case. (5). The petitioner inter alia averred in the writ filed by him that on 31st March, 1980 he was granted mining lease of the land entered in Khasra No. 1245 over an area of 86.90 Hectares for a period of twenty years. In the year 1991, a notice purporting to be one u/s 91 of the Rajasthan Land Revenue Act, 1956 (in short `the Act) was issued to him and the Tehsildar vide his order dated 25.4.1991 directed his dispossession from Khasra No. 1245. In the year 1991, a notice purporting to be one u/s 91 of the Rajasthan Land Revenue Act, 1956 (in short `the Act) was issued to him and the Tehsildar vide his order dated 25.4.1991 directed his dispossession from Khasra No. 1245. It is the case of the petitioner that the order aforesaid was passed on the basis of report of the Patwari which revealed that the petitioner had constructed a lime klin and pucca house in an area measuring 20 x 20 and a Veranda (courtyard) in Khasra No. 1245. Constrained, the petitioner filed an appeal against the order aforesaid before the Collector who vide his order dated 3.6.91 dismissed the same. The petitioner filed second appeal before the Revenue Appellate Authority who vide his order dated 6.4.92 allowed the same and remanded the matter for fresh trial and enquiry. Tehsildar, after holding enquiry and perusing the documents came to the conclusion that the disputed land was allotted to the petitioner by the Mines Department for excavation of minerals and that the petitioner was in lawful possession of the land entered in Khasra No. 1245. Hence, proceedings u/s 91 of the Act were dropped. It is further the case of the petitioner that the government was quite aware that the land falling in Khasra No. 1245 was in lawful possession of the petitioner yet another notice dated 26.7.1994 purporting to be u/s 91 of the Act aforesaid was issued to which the petitioner responded by filing a reply. The government did not succeed in its efforts in dispossessing the petitioner pursuant to notice issued u/s 91 of the Act and thus, they thought of achieving the same object by earmarking and allotting the land, subject matter of lease of the petitioner, for construction of building of Police Station Sadar, Dausa. Supdt. Of Police, Dausa arrayed as third respondent, is stated to have made a request pursuant to which the Tehsildar had made recommendations for allotment of land falling in Khasra No. 1245 measuring 2.52 Hectare and on the recommendations he received, the government is said to have given sanction for construction of the police station vide order dated 25.10.94. In teeth of a valid mining lease in favour of the petitioner, respondents could not allot the same very land for construction of the Police Station. In teeth of a valid mining lease in favour of the petitioner, respondents could not allot the same very land for construction of the Police Station. It is on these broad pleadings that the petitioner filed writ petition under Article 226 of the Constitution of India. (6). Cause of the petitioner was hotly contested by the respondents and in particular, Respondent Nos. 1 and 2. In the written statement filed on behalf of respondents Nos. 1 and 2 it was inter alia pleaded that the land comprised in Khasra No. 1245 situated in Dausa Khurd was a pasture land. After creating Dausa district, all district level offices were to be established. The land in dispute was also situated near the main residential area of Dausa, therefore, it was proposed to construct all district level offices at one place i.e., over the disputed land and nearby it. All district level offices have already been constructed which are adjacent to the disputed area. For construction of the police station building and residential quarters for policemen, the land in dispute was thought proper and therefore, land measuring 1.52 Hectares out of Khasra No. 1245 was cancelled from pasture land by the State and was proposed for construction of police station building. After receipt of sanction from the State Government, possession of the same has been given to the police department. Khasra No. 1245 being a pasture land, could not be put to use for purposes other than those mentioned under sub-rule (1) of Rule 7 of Rajasthan Tenancy (Government) Rules without permission of the State Government. No permission was accorded by the State Government to use the land in dispute for mining purposes. Therefore, the land in dispute could not be included in the mining area. It is also pleaded that as per clause 2 of Part-III of mining lease, surface operations could only be carried out after getting permission from the Collector and as such, the petitioner in the leased area could not carry out mining operations at place of his choice. As per clause (i) of Part-III no building could be erected on the lease area. In the present case, the land was set apart for construction of the police station. Sub rule 4 of Rule 7 provides that diversion of pasture land for the purposes as mentioned in sub-rule (i) shall not be made without prior permission of State Govt. As per clause (i) of Part-III no building could be erected on the lease area. In the present case, the land was set apart for construction of the police station. Sub rule 4 of Rule 7 provides that diversion of pasture land for the purposes as mentioned in sub-rule (i) shall not be made without prior permission of State Govt. The land in dispute, it is pleaded, has rightly been allotted to the Supdt. Of Police for construction of police station building after approval by the State Government. (7). Before we proceed any further in the case, we would like to mention that the mining lease was granted to the appellant in 1980, which was for a period of 20 years. The said period has already expired. Learned counsel appearing for the appellant on 19.9.2001 made a statement that the appeal had become infructuous. The same was thus dismissed on the same very day. However, vide orders dated 29.3.2005, the order dated 19.9.2001 was recalled. Learned counsel states that a wrong statement came to be made that the appeal had become infructuous as even after the period of twenty years, a right had vested as per rules and the terms of the lease agreement for renewal of the lease. Once the order dismissing appeal as having become infructuous has been recalled, we would not like to go into the question as to whether the appeal survives after expiry of lease period or not and would rather deal with the case on merits. (8). During the course of arguments, it remained undisputed that prior sanction of the government for grant of mining lease with regard to the nature of land which was pasture was essential under the rules and further that such a sanction was not granted by the government. It has also remained undisputed that in so far as 6 Bighas of land out of the area leased to the appellant is concerned, the same was allotted to the police department after the government had granted prior permission for the same. (9). In the context of the facts as have been fully detailed above, we are unable to follow that even if the first contention of the learned counsel, as noted above, is accepted, how the same would advance his cause. (9). In the context of the facts as have been fully detailed above, we are unable to follow that even if the first contention of the learned counsel, as noted above, is accepted, how the same would advance his cause. Annexure-2 dated 25.4.1991 is an order issued by the Government of Rajasthan to all Divisional Commissioners and the Collectors that when a lessee would excavate minerals pursuant to a valid mining lease, the Panchayat Samitis would not raise any objection nor would the Government officers proceed against them u/s 91 of the Land Revenue Act. Annexure-3 dated 16.6.1995 deals with renewal of mining lease/quarry licence. It recites that for the purpose of renewal, it would not be necessary to obtain a `No Objection Certificate. Annexure-4 dated 10.2.1982 is a circular issued by the Government of Rajasthan directing the revenue authorities not to interfere in the mining operations being carried out in `Charnot area by the contractors under a valid mining lease and as per agreement executed with the Mining Department. The documents relied upon by the appellant pre-suppose validity of the mining lease. The directions contained in Annexure-2, 3 and 4, in our view, would be applicable only when it is a case of valid licence granted to excavate minerals. If, as in the present case, the licence for mining lease is invalid, there being no prior sanction of the Government, which is essential where the nature of land is pasture, the directions contained in Annexures-2 to 4, in our view, would not be applicable. That apart, directions contained in Annexures-2 to 4 only required Panchayat Samitis and officials of the revenue department not to interfere but that does not mean that the mining lease is valid. (10). So far as the second contention of the learned counsel, as noted above, is concerned, we may mention that if the mining lease granted to the appellant was valid, the question required to be adjudicated would have been certainly as to whether the area on which appellant was granted mining lease, could be allotted to the police department. Once the appellant was unable to show a right vesting in him to extract the mines and minerals on the area, subject matter of lease, there was no need at all to examine only other question. The writ petition by holding the appellant to have no right vesting in him had to be dismissed. Once the appellant was unable to show a right vesting in him to extract the mines and minerals on the area, subject matter of lease, there was no need at all to examine only other question. The writ petition by holding the appellant to have no right vesting in him had to be dismissed. Anyone who might knock at the doors of the court has necessarily to establish a valid right that might have accrued to him and if the court might find that he has no valid right, no further question needs be determined and in that event, the cause of litigant has to fail. Learned Single Judge, in our view, rightly dismissed the writ petition after holding that the appellant by virtue of lease granted to him had no justifiable right to knock at the doors of the court. If perhaps the lease granted to the appellant would have been cancelled, different parameters would have followed but in so far as the land subject matter of allotment to the police department is concerned over which prior sanction was concededly obtained, the appellant would have no right. We may mention here that it is only on an area measuring 6 Bighas that the government had granted sanction for construction of the police station. Once it was established that the lease was granted to the appellant without there being prior sanction, the land being pasture in so far as the said area is concerned, the petition had to be dismissed. (11). We find no merit whatsoever in this appeal and thus dismiss the same leaving however the parties to bear their own costs.