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2006 DIGILAW 466 (RAJ)

Abdul Shakoor v. State of Rajasthan

2006-02-10

R.S.CHAUHAN, S.N.JHA

body2006
Judgment S.N. Jha, CJ.-This special appeal is directed against the order of the learned Single Judge dated 01.09.2005 in S.B. Civil Writ Petition No. 6732/2004 dismissing the writ petition of the appellants. The appellants had filed the writ petition for quashing the order of the Deputy Secretary (Mines), Government of Rajasthan dated 28.08.2004 cancelling the quarry licence of the appellants, and for declaration that the licence was rightly granted to the appellants in recognition of their Bapi Rights which cannot be interfered with by the respondents. 2. The case of the appellants is that a lease in respect of quarry No. 69 measuring 75 x 50 at Ulodi Range, Makrana was granted to one Noor Mohammed in the year 1925 by the erstwhile State of Jodhpur under Makrana Marble Quarries Rules, 1922. On the death of Noor Mohd. his son Nathaji inherited the lessees rights in terms of Rule 6 of the said Rules. After Nathaji died his son Habibji came to inherit rights. Habibji died on 31.01.1964. On his death the names of his sons Abdul Gafoor and Abdul Shakoor were mutated on 27.06.1964. Abdul Shakoor and heirs of Abdul Gafoor (since dead) are the appellants. On 31.07.1995 the appellants submitted application to convert the lease into licence. Respondent No. 6 Abdul Rajak (hereinafter referred to as the respondent) also applied for grant of licence for the same quarry, for 37.5 x50 area on 24.01.1997. On 28.02.1997 public notice was issued inviting objections. Meanwhile, on 22.02.1997 the respondent filed Civil Suit No. 27/97 for declaration and temporary injunction. On 01.03.1997 the Court rejected application for temporary injunction. On 19.06.1997, the Mining Engineer converted the lease into a quarry licence in favour of the appellants. The application of the respondent was rejected on 02.07.1997. He filed appeal before the Additional Director (Mines) but withdrew the same and filed writ petition being S.B. Civil Writ Petition No. 2875/1997 which in course of time was dismissed as withdrawn on 25.07.2002. Meanwhile, he had filed two revisions being, Revisions No. 257 and 258 of 1997, before the Deputy Secretary (Mines), Government of Rajasthan. He had also filed S.B. Civil Writ Petition No. 3228/1998 in which order of stay was passed on 02.09.1998 but same was vacated after the appellants got themselves impleaded on 28.04.2004. Meanwhile, he had filed two revisions being, Revisions No. 257 and 258 of 1997, before the Deputy Secretary (Mines), Government of Rajasthan. He had also filed S.B. Civil Writ Petition No. 3228/1998 in which order of stay was passed on 02.09.1998 but same was vacated after the appellants got themselves impleaded on 28.04.2004. Against the said vacating order respondent also filed Special Appeal No. 480/2004 but the same was withdrawn alongwith S.B. Civil Writ Petition No. 3228/1998 on 09.09.2004. In the mean time the Deputy Secretary (Mines) had passed order on 28.08.2004, impugned in the writ petition, cancelling the quarry licence in Revision No. 257/1997 (Supra). 3. It may be mentioned here that Revision No. 257/1997 had been filed against the order dated 19.06.1997 (Supra), converting lease into quarry licence in favour of the appellants while Revision No. 258/1997 was directed against the order dated 02.07.1997 (Supra), rejecting the respondents application for grant of licence. While Revision No. 257/1997 was allowed, Revision No. 258/1997 was dismissed by the same order dated 28.08.2004. The Deputy Secretary (Mines) held that the quarry was property of the State Government, and whether the parties could claim Bapi rights or not could be decided only by the competent Civil Court in terms of Rule 64 of the Rajasthan Minor Mineral Concession Rules, 1986. While rejecting the claim of both the appellants and respondent the Deputy Secretary directed the Mining Engineer, Makrana to take possession of the quarry till the dispute is decided by the competent Court. 4. It may be mentioned here that the so called Bapi right is the right inherited from the father i.e., hereditary right which was recognized under Rule 6 of the erstwhile Makrana Marble Quarries Rules, 1922. Case of the appellants is that their rights can be traced to the lease by the erstwhile State of Jodhpur in favour of their ancestor Noor Mohd. whose sons and grand sons etc. came to inherit the rights in terms of the Quarries Rules, and they cannot be deprived of these rights. The appellants had simply made application to convert the lease into a quarry licence which was rightly allowed by the Mining Engineer. The respondent not being a descendent of Noor Mohd. he cannot claim any right or interest in the quarry, and the Deputy Secretary (Mines) committed error in interfering with the licence of the appellants at his instance. The appellants had simply made application to convert the lease into a quarry licence which was rightly allowed by the Mining Engineer. The respondent not being a descendent of Noor Mohd. he cannot claim any right or interest in the quarry, and the Deputy Secretary (Mines) committed error in interfering with the licence of the appellants at his instance. In course of hearing Counsel for the appellants highlighted that the respondent had failed to obtain any order in his favour either in the civil suit or in the writ petitions except for a short period in S.B. Civil Writ Petition No. 3228/1998 vide order dated 02.09.1998 (Supra). 5. It is relevant to mention here that the claim of the respondent is founded on a sale-deed, dated 15.03.1980, executed by Abdul Gafoor in respect of his share i.e., half of the leasehold area measuring 37.5 x 50 for which he had filed application for grant of licence on 24.01.1997 as seen above. The appellants, no doubt, challenge the sale in favour of the respondent, but then that is a matter of dispute between the parties which can be decided only by the competent Court. Rule 64 of the Rajasthan Minor Mineral Concession rules lays down:- “The Government shall not recognize any Bapi or propriety right in or any land wherein such a right is claimed by any person over any mineral bearing land, quarry or mine unless declared so by a Court of competent jurisdiction.” 6. In view of the counter claim of the respondent-claiming right in the quarry/mine the conditions laid down in Rule 64 would prima facie appear to be satisfied. 7. On behalf of the appellants it was submitted that Bapi rights can be claimed only by a descendent of the original tenant/lessee, and respondent simply being an alleged purchaser even if it is accepted that he has a prima facie case on the basis of the sale-deed, his alleged right is not the same as Bapi right so as to attract Rule 64 of the Minor Mineral Concession Rules. We do not find any substance in the contention. 8. It is true that the appellants are directed descendents of Noor Mohd., which the respondent is not; however as far as the nature of his right on the basis of sale-deed is concerned, it would be the same as a Bapidar i.e., a person possessed of Bapi rights. We do not find any substance in the contention. 8. It is true that the appellants are directed descendents of Noor Mohd., which the respondent is not; however as far as the nature of his right on the basis of sale-deed is concerned, it would be the same as a Bapidar i.e., a person possessed of Bapi rights. It is to be kept in mind that respondent claims his right under sale-deed executed by none else than Abdul Gafoor who possessed moiety share in quarry No. 69 alongwith Abdul Shakoor as sons of Habibji and descendents of Noor Mohd. By said purchase he clearly stepped into the shoes of the vendor i.e., Abdul Gafoor. What Abdul Gafoor sold was his rights in the quarry i.e., his Bapi rights which he had inherited from his father. Clearly thus, by virtue of the purchase the respondent came to possess the same very Bapi rights alongwith Abdul Shakoor. It may be relevant to mention here according to the respondent, both Abdul Gafoor and Abdul Shakoor had executed agreement of sale on 02.06.1972, but the sale-deed was executed by Abdul Gafoor alone. The Makrana Marble Quarries Rules permits transfer of patta, vide Rule 7 of the rules. That is how the respondent filed application for grant of quarry licence with respect to half of the area only i.e., 37.5 x 50 out of total area of the quarry viz. 75 x 50. The words “such a right” in Rule 64 refer to “Bapi or proprietary right” and, therefore, where such a right is claimed bona fide, Rule 64 would clearly be attracted. Without intending to express our opinion on merit of the case, which would be pre-mature, we may observe that where the claim is founded on registered document, the claim of right thereunder may be called prima facie bona fide claim. 9. The fact that the respondent failed to secure injunction in the civil suit or that writ petitions were withdrawn does not conclude the matter. The suit was filed in the wake of the public notice inviting objection to the appellants application to convert the lease into licence. After the Mining Engineer passed final orders on 19.06.1997 and 02.07.1997 the respondent filed revisions being Revision Nos. 257 and 258 of 1997, in which the impugned order was passed on 28.08.2004. The suit was filed in the wake of the public notice inviting objection to the appellants application to convert the lease into licence. After the Mining Engineer passed final orders on 19.06.1997 and 02.07.1997 the respondent filed revisions being Revision Nos. 257 and 258 of 1997, in which the impugned order was passed on 28.08.2004. Filing of the suit, writ petitions rather shows that the respondent has been contesting the claim of the appellants in right earnest. During pendency of the revision, the respondent filed civil suit registered as Suit No. 6 of 2003 which is said to be pending and in which status quo order has been passed by the Civil Judge 10. Submission of the Counsel for the appellants however was that the appellants had surrendered Bapi rights in lieu of grant of licence, and, therefore, the licence could not be cancelled. The submission is wholly misconceived and fit to be rejected outright. The appellants applied for a quarry licence in view of the statutory provisions without which they could not have carried on the quarrying/mining activities. If they applied for the licence it was for their own benefit and there was no question of any surrender of Bapi rights as a consideration for grant of licence. It is to be kept in mind that no person can claim any right in the minerals. He can claim right only in the land. So far minerals are concerned, they stand vested in the State and belong exclusively to it. That is why necessity of lease or licence and that is how the parties applied for licence. The appellants thus cannot claim any right in mineral except under a licence. 11. Rule 64 of the Minor Mineral Concession Rules no doubt recognizes acquisition of Bapi and proprietory rights but at the same time provides that where there is bona fide dispute in respect of any mineral bearing land, quarry or mine, the Government shall not “recognize” such right unless declared by a competent Court. That is what has been done by the Deputy Secretary (Mines) vide order dated 28.08.2004. That is what has been done by the Deputy Secretary (Mines) vide order dated 28.08.2004. The only protection which the appellants as a matter of fact, the parties can claim is that till the dispute is not resolved by the competent Civil Court, the Department will not operate the quarry and status quo will be maintained so that depending on the outcome of the suit the party or parties are able to enjoy their professed Bapi rights. 12. The order of the learned Single Judge dismissing the writ petition in the circumstances does not suffer from any error to warrant interference by the Division Bench. The appeal is, therefore, dismissed, subject to the observations hereinbefore.