Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1293 (RAJ)

Jetha Ram v. State of Rajasthan

2012-05-16

ARUN MISHRA, SANGEET LODHA

body2012
Hon'ble LODHA, J.—By way of this writ petition, the petitioners are seeking directions to the respondents to stop illegal mining in the pasture land comprising khasra no.229 at village-Khudala, Tehsil-Gudamalani, District-Barmer. The petitioners have also sought directions to take action against the persons involved in illegal mining and to conduct a detailed inquiry so as to quantify the mineral loss, revenue loss and environmental loss caused by the persons involved in undertaking illegal mining with the connivance of local authorities and to penalise them by awarding compensation to be utilised for regaining the pasture land. 2. The petitioners are permanent residents of panchayat area of Gram Panchayat, Khudala, Gram Panchayat, Adail, Gram Panchayat, Lohara and Gram Panchayat, Sada of Panchayat Samiti, Sindhari, Tehsil Gudamalani, District Barmer. The grievance of the petitioners is that unscrupulous persons are excavating mineral 'Bazari' from the land comprising khasra No.229 of village Khudala, situated near the bank of river Luni, which stands set apart as pasture land. It is submitted that on 5.6.08, the Gram Panchayat, Khudala in its Gram Sabha meeting adopted a resolution to make a complaint against the illegal mining of 'Bazari' and cutting of the trees in the said pasture land to the authorities concerned. Pursuant thereto, on complaint being made, respon-dent no.4-Tehsildar, Gudamalani inspected the location at khasra no.229 of the revenue village Khudala and found that illegal mining of 'Bazari' was being undertaken by a JCB machine owned by one Shri Pukhraj Jain of Gudamalani. A site inspection report prepared is placed on record as Annexure 3. The Tehsildar, Gudamalani while seizing the JCB machine, vide communication dt. 3.7.08 informed the Assistant Mining Engineer, Department of Mines, Barmer about the illegal mining and requested to quantify the mineral excavated illegally by taking the measurements. The Assistant Engineer, Barmer in his turn inspected the site and after taking measurements found that 2618 mt. tn. 'Bazari' has already been excavated illegally. The Tehsildar also requested the Assistant Commercial Taxes Officer, Ward II, Barmer to assess the commercial taxes payable and the amount of penalty, on 2618 mt.tn. 'Bazari' excavated illegally. The Assistant Engineer, Barmer in his turn inspected the site and after taking measurements found that 2618 mt. tn. 'Bazari' has already been excavated illegally. The Tehsildar also requested the Assistant Commercial Taxes Officer, Ward II, Barmer to assess the commercial taxes payable and the amount of penalty, on 2618 mt.tn. 'Bazari' excavated illegally. On the basis of the inspection made as aforesaid, Tehsildar, Gudamalani filed a complaint u/S. 22 of Mines & Minerals (Regulation & Development) Act, 1957 (for short “the Act of 1957”) read with Rule 48(5) of Rajasthan Minor Mineral Concession Rules, 1986 (for short “MMCR,1986”) before the Additional Chief Judicial Magistrate, Barmer. However, after taking the action as aforesaid, the respondent authorities did not proceed further. It is submitted that the JCB machine was released on 'supurdaginama' within a short span of time and thereafter, the illegal mining continues. The petitioners made representation to various authorities to stop the illegal mining in the pasture land but to no avail. Hence, this petition. 4. On 19.9.11, this court while issuing show cause notice to the respondents passed an ad interim order in the following terms:- “In the meanwhile, the respondents are directed to ensure that no illegal mining takes place in the gochar land bearing khasra No.229 at Village Khudala, Tehsil Guda Malani, District Barmer.” 5. A return to the writ petition has been filed on behalf of the respondents wherein it is submitted that no mining activity is permissible in the pasture land unless the land is set apart for that purpose by the District Collector on the recommendations being made by the Panchayat Samiti. It is submitted that on the complaint being lodged , action was taken to stop the illegal mining and at present no illegal excavation of 'Bazari' is being carried out as alleged. It is submitted that on site inspection being made on 29.9.11, it was found that the mineral 'Bazari' was excavated in 40 bighas area of the pasture land comprising khasra no.229, however, no mining activities is continuing at present at the location. As per yet another inspection report (Annexure R/1) prepared on the basis of the inspection made, it has come on record that in a strip of land of 30-50 mtrs. width and 600 mtrs. in length, 'Bazari' was excavated and at present, pits are existing at the site. As per yet another inspection report (Annexure R/1) prepared on the basis of the inspection made, it has come on record that in a strip of land of 30-50 mtrs. width and 600 mtrs. in length, 'Bazari' was excavated and at present, pits are existing at the site. It has also come on record that a passage in the east of the Luni river to the village Goliya , Lolawa and Tukiya passes through the said khasra. That apart, a passage connecting to the Mega Highway also passes through the said land comprising khasra no.229. However, it is reiterated that no mining activity is being undertaken in the said land as on the date. The return filed is conspicuously silent about the action, if any taken, against the persons responsible for illegal mining regarding the recovery of amount of royalty , taxes and penalties payable in respect of the mineral illegally excavated. 6. Learned counsel for the petitioners contended that the illegal mining of the 'Bazari' in the pasture land is going on for last more than one and half years which is causing heavy loss to the public at large and also causing revenue loss to the State. Drawing the attention of this court to the satellite map of the location (Annexure 10) and the photographs placed on record collectively marked as Annex.12, learned counsel attempted to demonstrate the damage caused on account of illegal mining to the pasture land so also the bank of Luni river. Learned counsel submitted that if the illegal mining is not checked and the unscrupulous persons involved in illegal mining are not dealt with sternly, besides devastation of pasture land, the cutting of river bank may cause a disaster. Learned counsel urged that the criminal activity on the part of the persons indulged in illegal mining is operating with the connivance of the government officials, otherwise, there is no reason as to why appropriate action is not taken against the persons indulged in the illegal mining and no attempt is made to effect the recovery of the revenue loss and to penalise the persons responsible for the damage already caused. 7. 7. On the other hand, learned Additional Government Counsel appearing for the Department of Mining submitted that mining activities in the pasture land is prohibited under the law and therefore, question of permitting any mining activity in the land in question which is admittedly pasture land does not arise. It is submitted that the mining in the pasture land can only be allowed when the land is set apart for the said purpose by the Collector on the recommendation of the Panchayat Samiti concerned. It is submitted that the Department of Mining has not granted any license/patta/permission to anybody to excavate mineral 'Bazari' from the pasture land in question. It is submitted that on the complaint of the Gram Panchayat about illegal mining in pasture land, the site was inspected by the respondent no.4 and a site inspection report was prepared which revealed that mineral 'Bazari' was illegally excavated by unknown persons by using JCB. It is submitted that the mineral 'Bazari' illegally excavated was quantified at 2618 mt. tn. It is submitted that the JCB used for illegal excavation of 'Bazari' was seized. Learned counsel urged that at present, no illegal mining activity is continuing in the pasture land in question as alleged by the petitioners. On being pointedly asked, learned counsel appearing for the respondents has not been able to satisfy this court about the reasons for not taking an appropriate action against the persons responsible for illegal excavation of mineral uptil now. 8. We have considered the rival submissions and perused the material on record. 9. 'Pasture land' as defined by Section 5(28) of Rajasthan Tenancy Act, 1955 ('the Act of 1955') shall mean land used for grazing of the cattle of a village or villages or recorded in settlement records as such at the commencement of the Act or thereafter reserved as such in accordance with the Rules framed by the State Government. As per provisions of Section 92 of the Rajasthan Land Revenue Act, 1956(for short “the Act of 1956”), subject to general or special orders of the State Government, the Collector may set apart land for any special purpose such as for free pasturage of cattle, for forest reserve, for development of abadi or for any other public or municipal purpose and such land shall not be used otherwise than for the purpose without the previous sanction of the Collector. Section 16 of the Act of 1955 prohibits accrual of khatedari rights in pasture land. Rule 4 of Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970 which specifies the categories of the land not available for allotment for agriculture purposes includes the lands mentioned in Section 16 of the Act of 1955 which includes the pasture land as aforesaid. 10. Section 93 of Act of 1956 mandates that the right of grazing on pasturage land shall extend only to the cattle of the village or villages for which such land has been set apart and shall be regulated by the Rules made by the State Government. 11. As per Rule 7 in Chapter II of Rajasthan Tenancy (Govt.) Rules, 1955, incorporated to give effect to the provisions of Sec. 5(28) of the Act of 1955, the Collector is empowered to change the classification of any pasture land as defined u/S.5(28) or any pasture land set apart u/s 92 of the Act of 1956 as unoccupied culturable Govt. land (Siwai Chak), for allotment for agriculture or any non agricultural purposes. However, as per First proviso to Rule 7 in case where land sought to be allotted or set apart exceeds 4 hectares, the Collector is under an obligation to obtain prior permission of the State Government. Sub-rule(2) of Rule 7 mandates that where classification of any pasture land is changed under sub-rule (1) , the Collector may set apart an equal area of unculturable government land if available as pasture land in the same village. 12. Coming to the Mining Laws, indisputably, as per provisions of Section 4 of the Act of 1957, no person can undertake any mining operation in any area except under and in accordance with the terms and conditions of mining lease granted. It is also not in dispute that the 'Bazari' is a minor mineral which squarely falls within the provisions of the Act of 1957 and the Rules made thereunder. By virtue of Section 15 of the Act of 1957, the State Government is empowered to make Rules in respect of minor minerals. It is also not in dispute that the 'Bazari' is a minor mineral which squarely falls within the provisions of the Act of 1957 and the Rules made thereunder. By virtue of Section 15 of the Act of 1957, the State Government is empowered to make Rules in respect of minor minerals. In the State of Rajasthan , the State Government in exercise of the power conferred u/s 15 of the Act of 1957 has framed the MMCR,1986, which regulates the grant of quarry licenses, mining leases and other mineral concessions in respect of minor mineral and for the purposes connected therewith. As per sub-rule (5) of Rule 4 of MMCR,1986 , no mining lease could be granted or renewed in respect of lands notified by the government as reserved for use of the government or local authorities or for any public or special purpose. Indisputably, 'Bazari' is a minor mineral and the land in question being a pasture land set apart for grazing of the cattles of the villages concerned, it is not open for the mining authorities to grant the mining lease for the excavation of the mineral 'Bazari' from the said land. 13. Suffice it to say that the pasture land is meant for grazing of the cattles of the village or villages and once the land is categorized as pasture land , it cannot be divested to use for any other purposes including the mining operation unless and until in the special circumstances, its classification as pasture land is changed by the competent authority in accordance with the procedure laid down under the relevant Statutes. Further, it is statutory obligation of the state authorities to ensure that the land set apart for pasturage is not divested to be used for any other purpose unauthorisedly. The livelihood of large number of villagers is dependent on the livestock and therefore, it is the bounden duty of the state authorities to preserve, develop and manage the pasture land in a manner which ensures therein the vegetation in abundance to feed the livestock. Needless to say that if illegal mining and other such activity in the pasture land is not viewed seriously and dealt with sternly by taking appropriate measures, pasture land will be fragmented and deteriorated and ultimately, will be destroyed, frustrating the very purpose of setting apart the land as pasturage. 14. Needless to say that if illegal mining and other such activity in the pasture land is not viewed seriously and dealt with sternly by taking appropriate measures, pasture land will be fragmented and deteriorated and ultimately, will be destroyed, frustrating the very purpose of setting apart the land as pasturage. 14. Adverting to the facts of the present case, it is pertinent to note that it is a common ground between the parties that the land in question being pasture land, no mining activities is permitted to be undertaken under the said land unless its category is changed for the purpose in accordance with the procedure laid down under the relevant Statute as noticed above. It is also not in dispute that illegal mining was undertaken therein by the unscrupulous person without any lawful authority. We are at pain to notice that the mining activity in the land in question continued for a period of one and half years unabatedly before the very eyes of the authorities concerned, which has tendency to damage not only the pasture land but may also cause serious damage to the bank of Luni river which is likely to result in a disaster. The material on record reveals that it was well within the knowledge of the government authorities that the user of the land in question for any other purpose may cause serious damage to the river bank and only for this reason, a decision was taken to plant the trees in the said pasture land so that the erosion of the Luni river bank is checked and the agriculture land and the abadi area nearby is protected from any possible disaster. It goes without saying that no mining activities can be permitted to be undertaken in any land what to say about the pasture land, which may cause damage to the river bank or create obstacles and hindrance in natural flow of the water of the river. Thus, it was the responsibility of the persons at the helm of the affairs to be vigilant enough to ensure that no illegal mining activities is undertaken in the land in question. 15. It is really unfortunate that despite the factum of illegal mining coming to the notice of the mining authorities and other authorities of the State, no stern action is taken against the persons responsible for undertaking the illegal mining. 15. It is really unfortunate that despite the factum of illegal mining coming to the notice of the mining authorities and other authorities of the State, no stern action is taken against the persons responsible for undertaking the illegal mining. No serious efforts are made to recover the amount of royalty, taxes and penalties leviable on the mineral excavated from the land in question without authority of law either. The Gram Panchayat has also failed in discharging its statutory duty to prevent unauthorised use of the pasture land. This court is constraint to observe that inaction on the part of the state authorities in dealing with the situation reflects utter weakness on their part to effectually curb the menace of illegal mining. It is high time that appropriate stern actions are taken to preserve and protect the pasture land in the State else it is likely to be subjected to gradual ravishment at the unscrupulous and greedy hands of man. 16. Coming to the recovery of cost of the minerals, royalty, taxes and penalty from the persons indulged in undertaking illegal mining in pasture land, it is pertinent to note that as per sub-sec. (1) of Sec. 21 of the Act of 1957, whoever contravenes the provisions of sub-sec. (1) or sub-sec. (1A) of Sec. 4, is liable to be punished with imprisonment for a term which may extend to two years or with fine which may extend to twenty five thousand rupees or with both. That apart, whenever any person raises without any lawful authority any mineral from any land in terms of provisions of sub-sec. (5) of Sec. 21, the State Government is empowered to recover from such person the mineral so raised or where such mineral has already been disposed of the price thereof and may also recover from such person rent, royalty or tax , as the case may be for the period during which the land was occupied by such person without any lawful authority. Further, as per sub-sec. (4) of Section 21, whenever any person raises or transport or causes to be raised or transported without any lawful authority any mineral from any land and for that purpose uses any tool, equipment, vehicle or any other thing, such mineral , tool, equipment, vehicle or any other thing shall liable to be seized by an officer or authority specially empowered in this behalf. In terms of sub-sec. (4A), the things seized as aforesaid shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-sec. (1) of Section 21 and shall be disposed of in accordance with the directions of such court. Similar provision is incorporated in Rule 48(5) of the MMCR, 1986 regarding the seizure and confiscation of the mineral raised without authority of law and other things used for the purpose and as per proviso to Rule 48(5) where mineral so raised has already been dispatched or consumed , the authorities concerned are empowered to recover cost of mineral alongwith rent, royalty or the tax chargeable on the land occupied on mineral excavated which will be computed as ten times the royalty at the prevalent rates. 17. Thus, it is abundantly clear that as against the persons responsible for illegal mining of the 'Bazari' from the pasture land in question, the respondents besides lodging the prosecution for the offence committed, were under an obligation to take the appropriate proceedings for the confiscation of the JCB machine seized and for recovery of the cost of mineral, rent , royalty and penalty i.e. ten times of the royalty at prevalent rate. It is not disputed before this court by the learned counsel appearing for the respondents that no such proceedings are taken against the persons responsible for illegal excavation of the mineral. In considered opinion of this court, the inaction on the part of the state authorities in effecting the recoveries as provided by the relevant Statutes is highly questionable and deserves to be deprecated . 18. In view of the discussion above, the writ petition deserves to be allowed. In considered opinion of this court, the inaction on the part of the state authorities in effecting the recoveries as provided by the relevant Statutes is highly questionable and deserves to be deprecated . 18. In view of the discussion above, the writ petition deserves to be allowed. Accordingly, it is hereby allowed with the following directions:- (1) The respondents shall take appropriate measures to ensure that pasture land is not encroached upon and no mining activity is undertaken by any person therein and it is preserved, protected and punctiliously maintained for the purpose of grazing of the cattles; (2) The respondents shall take appropriate proceedings to recover cost of the mineral 'Bazari' alongwith rent, royalty, taxes chargeable and penalty in terms of provisions of Sec.21 of the Act of 1957 read with sub-rule (5) of Rule 48 of MMCR,1986 against the persons who are responsible for excavating the said mineral from the pasture land in question without any authority of law; (3) The respondents are further directed to fix the responsibility and take appropriate disciplinary action against the government officials, who are guilty for deleterious inaction in not taking the appropriate steps at the appropriate stage to check the illegal mining in the pasture land causing damages noticed as above and for their failure to effect the recovery from such persons in respect of the mineral illegally excavated. 19. No order as to costs.