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2005 DIGILAW 746 (RAJ)

Modu Lal v. State of Rajasthan

2005-03-03

DINESH MAHESHWARI, RAJESH BALIA

body2005
Honble BALIA, J.–Heard learned Counsel for the petitioner. (2). The petitioner has chosen circuitous way to get over the judgment suffered by him which was rendered by this Court against him on 21.10.2003. The writ petition to set aside the judgment of the learned Single Judge of this Court is not maintainable, though intra Court appeal may be maintainable as may be permitted by law. The sitting Judge of this Court is not as such a Court subordinate over which extra-ordinary jurisdiction can be exercised. Extraordinary jurisdiction can be exercised only against an order passed by an authority/Court/Tribunal subordinate to High Court. (3). Moreover, it appears to us that these proceedings are taken in abuse of process of Court. (4). The undisputed facts of the present case are that the petitioner has excavated minerals, which property vest in the State, without any authority of law. He did not have any permit, licence or lease in accordance with law in his favour to win the mineral from the land in question which was Government land. (5). Apparently, the petitioner was found to be trespasser on revenue land and taking away the property of the State. (6). The Additional Collector with reference to Section 89 of the Rajasthan Land Revenue Act, 1956 finding him a trespasser on the Government land and extracting the minerals from site, the right to which vests in the State and which right has not been assigned by any authority in favour of the petitioner, raised a demand at the rate of Rs. 50/- per tone as per Sub-section (7) of Section 89 of the Rajasthan Land Revenue Act, 1956. (7). The petitioners only claim to get rid of those proceedings was to urge that in view of the Central Legislation on the subject namely the Mines and Mineral (Regulation and Development) Act, 1957 and Rajasthan Minor Mineral Concessions Rules, 1986 framed thereunder for taking action against him for illegal extraction of mineral, the only authority provided under the Mineral Concession Rules was the Mining Engineer or any authority designated by Director, Mines. It was pointed out to us that the consequence of illegal extraction of the Mineral Concession Rules is that the trespasser becomes not only liable for the price of mineral excavated but is further liable to 10 times royalty payment thereon. (8). It was pointed out to us that the consequence of illegal extraction of the Mineral Concession Rules is that the trespasser becomes not only liable for the price of mineral excavated but is further liable to 10 times royalty payment thereon. (8). The admitted case of the petitioner is that unless and until the writ petition was decided by the High Court he has not suffered the consequences under the Mineral Concession Rules which is far serious than what has been provided under Sub- section (7) of Section 89 under which the Additional Collector has raised the demand. (9). The Board of Revenue accepted the plea of the present petitioner and set aside the demand and directed the authorities under the Mining Mineral Concession Rules to proceed against the petitioner. (10). Aggrieved with the order of the Board of Revenue dated 04.06.1998, the State Government has preferred the writ petition No. 861/2000 which was allowed by learned Single Judge on 21.10.2003 alongwith another group of cases following an earlier decision of the learned Single Judge of this Court in State of Rajasthan & Anr. vs. Udai Lal & Anr. (1). (11). The learned Single Judge in Udai Lals case has not decided the controversy about the repugnancy of the State Act with the Central Act and the procedure for which the same result could be arrived it. The learned Single Judge was of the opinion that it was an admitted case of encroachment of Government property coupled with illegal excavation of the minerals and the Board of Revenue ought not to have interfered with the order passed by the Additional Collector and, therefore, set at naught the order of the Board of Revenue, as the order passed by the Additional Collector has not occasioned substantial failure of justice. (12). As the facts exist, the petitioner has been found to have extracted and removed 70042 tones of the stone, the building material, without any authorisation from any competent authority and he has been required to pay Rs. 87,100/- in terms of Section 89(7). (13). (12). As the facts exist, the petitioner has been found to have extracted and removed 70042 tones of the stone, the building material, without any authorisation from any competent authority and he has been required to pay Rs. 87,100/- in terms of Section 89(7). (13). Apparently, in the ordinary course, the said writ petition filed against the order of Additional Collector to this Court would not have been sustained and this Court would have been justified in rejecting the writ petition by not exercising its extra-ordinary jurisdiction in favour of a person who himself was found to be acting in breach of law and wanted to invoke extra- ordinary jurisdiction to protect and admitted illegal act of his own. It has also not been shown to us, nor before any authority that the amount to which the petitioner would have been liable under the Mining Mineral Concession Rules would have been lesser than the amount charged by the Additional Collector, the order was not liable to be interfered in exercise of extra-ordinary jurisdiction. (14). In view thereof, the petition challenging the merit of the judgment of learned Single Judge at this belated stage otherwise also cannot be entertained. (15). The writ petition is, therefore, dismissed.