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2012 DIGILAW 594 (RAJ)

Dalpat Singh v. State (Mines and Geology)

2012-03-06

C.M.TOTLA, DINESH MAHESHWARI

body2012
JUDGMENT 1. This intra-court appeal is directed against the order dated 13.01.2012 whereby the learned Single Judge of this Court has dismissed the writ petition (CWP No. 13027/2011) filed by the petitioner-appellant in challenge to the order dated 17.06.2011 (Annex. 11) as passed by the Deputy Secretary, Department of Mines, Government of Rajasthan, Jaipur dismissing the revision petition preferred under Rule 47 of the Rajasthan Minor Mineral Concession Rules, 1986 ("the Rules of 1986") against an order dated 10.01.2008 (Annex. 9) whereby a quarry licence in relation to the Quarry No. 498 at mining area Khuman was granted in favour of the respondent No. 5, Smt. Tulsi Devi. 2. Put in brief, the relevant background aspects of the matter are that the petitioner was granted a quarry licence in relation to the aforesaid Quarry No. 498 by an order 08.01.1998 as issued by the Assistant Mining Engineer, Balesar (the AME). The case of the petitioner had been that he worked at the area making it fit for excavation but the quarry licence as issued in his favour was cancelled by the AME on 17.08.2004 under Rule 30(2) of the Rules of 1986, allegedly on the ground of default in payment of the monthly rent. The case of the petitioner further had been that he preferred an appeal against the order dated 17.08.2004 so passed by the AME before the Additional Director (Mines), Jodhpur under Rule 43 of the Rules of 1986 on 08.04.2005 wherein, show cause notices were issued on 11.04.2005 and the record was also requisitioned; and wherein, the factual report was submitted by the AME on 15.12.2005. 3. According to the petitioner, the said appeal remained pending before the Appellate Authority and came to be decided by the order dated 14.12.2009 (Annex.4). The Appellate Authority took note of all the facts and circumstances of the case and, proposing to take a lenient view, accepted the appeal in the manner that while setting aside the cancellation order dated 17.08.2004, remanded the matter to the AME with the directions that upon the petitioner depositing within 30 days the due rent, interest and penalty and so also the additional penalty in the sum of Rs. 2,000/-, proceedings be adopted for restoration of the mining area in his favour. 2,000/-, proceedings be adopted for restoration of the mining area in his favour. The Appellate Authority, however, put a proviso to the effect that its order would be operative only if the area in question had not been allotted in favour of anyone else and was vacant. The Appellate Authority ordered and observed as under:- " mDrkuqlkj izdj.k esa uje :[k viukrs gq, vihykaV dh vihy Lohdkj dh tkrh gS rFkk iz'uxr vkns'k fnukad 17-8-2004 dks vikLr djrs gq, izdj.k lgk;d [kfu vfHk;Urk] ckyslj dks bu funsZ'kksa ds lkFk fjek.M fd;k tkrk gS fd vxj vihykaV 30 fnuksa ds Hkhrj varj vof/k dk fu;ekuqlkj fdjk;k] C;kt o 'kkfLr rFkk vfrfjDr 'kkfLr :0 2000@& tek djk nsrk gS rks vihykaV ds i{k esa [kku cgkyh dh dk;Zokgh vey esa ykbZ tkosA vihykaV }kjk mijksDr funsZ'kksa dh ikyuk fu/kkZfjr le;kof/k esa ugha fd;s tkus ij ;g vkns'k Lor% gh fujLr ekuk tk;sxkA mDr vkns'k dsoy mlh fLFkfr esa ykxw gksxk vxj iz'uxr {ks= dk vkoaVu fdlh vU; ds i{k esa ugha fd;k x;k gks vkSj {ks= orZeku esa fjDr gksA " 4. It appears that the petitioner made a request for compliance of the order passed by the Appellate Authority and offered the amount to be paid on 11.01.2010 but was informed that the area in question had already been granted, way back on 10.01.2008, in favour of the respondent No. 5. 5. Faced with the aforesaid position that the area in question had already been granted in favour of the respondent No. 5, the petitioner preferred a revision petition before the Government per Rule 47 of the Rules of 1986 against the said order dated 10.01.2008 made in favour of the respondent No. 5. The learned Deputy Secretary, Department of Mines, considered and dismissed the revision petition by the impugned order dated 17.06.2011 (Annex.11) essentially with reference to the very terms of the Appellate Order dated 14.12.2009 whereby and whereunder, the proceedings for restoration in favour of the petitioner were to be taken up only if the area in question had not been allotted to anyone else and was lying vacant. The learned Deputy Secretary was of the opinion that the directions for restoration as contained in the order passed by the Appellate Authority were rendered redundant and inoperative because of the fact that the area in question had already been allotted on 10.01.2008. The learned Deputy Secretary was of the opinion that the directions for restoration as contained in the order passed by the Appellate Authority were rendered redundant and inoperative because of the fact that the area in question had already been allotted on 10.01.2008. It was also observed that as on the date of allotment, no interim order was in operation. 6. The petitioner's attempt to question the orders aforesaid in the writ petition failed when the learned Single Judge found no case for interference in the writ jurisdiction with the observations, inter alia, as under:- "5. Indisputably, the quarry license granted in favour of the petitioner stood cancelled vide order dated 17.8.04 passed by the Assistant Engineer (Mines), Balesar. Vide appellate order dated 14.12.09, the quarry license granted in favour of the petitioner was directed to be restored subject to the conditions incorporated which includes the condition in terms that the order restoring the quarry license shall operate only if the mining area in question is not allotted to anybody else and the same is lying vacant at present. It is not disputed by the learned counsel that the petitioner did not challenge the correctness and propriety of the condition incorporated in the appellate order by taking any further proceedings in accordance with law and thus, the appellate order has attained finality. Admittedly, the quarry license of the mining area in question was granted in favour of the respondent no. 3 by the authority competent vide order dated 10.1.08 i.e. prior to passing of the appellate order. Suffice it to say that as on the date of passing of appellate order, the mining area in question was not lying vacant and therefore, the order dated 14.12.09 passed by the appellate authority does not become operative in view of the condition incorporated as aforesaid and the same has rendered redundant and the order dated 17.8.04 passed by the Assistant Engineer (Mines), Balesar cancelling the quarry license of the petitioner stands. Thus, the petitioner has no right to claim the restoration of the quarry license and question the validity of the quarry license granted in favour of the respondent no. 3. 6. Thus, the petitioner has no right to claim the restoration of the quarry license and question the validity of the quarry license granted in favour of the respondent no. 3. 6. For the aforementioned reasons, in considered opinion of this court, the revisional authority has committed no jurisdictional error in rejecting the revision petition preferred by the petitioner so as to warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India." 7. The learned counsel for the petitioner-appellant has strenuously argued that the petitioner has been subjected to serious prejudice in this matter only for the faults and mistakes of the AME, who failed to retain the area in question until disposal of the appeal although in such cases, as a matter of practice, the Department refrains from allotting the area in dispute until conclusion of the pending litigation. In this regard, the learned counsel has referred to a notification dated 16.03.2009 (Annex.6) whereby, even while notifying certain plots for allotment, the Department had retained some other plots. The learned counsel further contended that granting of stay or not was the matter within the jurisdiction of the Appellate Authority but the fact remains that the stay application as moved by the petitioner had not been rejected by the Appellate Authority and remained pending. According to the learned counsel, merely because the Appellate Authority took a longer time in deciding the appeal, the AME concerned could not have over-reached and could not have allotted the area to someone else so as to frustrate the cause of the petitioner. The learned counsel also submitted that the matter had essentially been of a formal nature where the default attributed to the petitioner was of arrears of rent for about 4 months; and the Appellate Authority had rightly passed the order in favour of the petitioner with reference to the law laid down by this Court to the effect that cancellation of a mining lease or quarry licence ought to be that of the last resort and ought not to be taken up as a matter of course. The learned counsel urged that the petitioner, having invested time, money and energy over the area in question for over 6 years, deserves not to be deprived of the fruits of his labour and deserves to be allowed to excavate the mineral from the area in question. 8. After having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner/appellant and having perused the record, we are unable to find any reason to consider interference in this matter in intra-court appeal. 9. In a comprehension of the facts and the related aspects, it is but apparent that the grant as made in favour of the petitioner was cancelled way back on 17.08.2004. Even when the petitioner filed an appeal against the order of cancellation and the appeal remained pending with requisitioning of the record and filing of factual report, it was, nevertheless, decided only on 14.12.2009, i.e., more than 5 years after cancellation. Admittedly, there was no interim order operating during the pendency of the said appeal. Neither the Department could be faulted in declaring the area in question vacant nor the AME could be faulted in allotting the same to the respondent No.5 when there was no interim order operating against such allotment. The reference to notification - Annexure-6 is of no avail to the petitioner. Merely because therein the Department, while inviting applications for grant of quarry licence, put a restriction on grant qua some of the plots, it is difficult to deduce that it is always incumbent for the Department to put the process of allotment in relation to an area in abeyance if the same is subject of a litigation. No such rule has been indicated whereby the Department could be considered obliged to keep the area vacant merely for pendency of a litigation and without any specific order to that effect. 10. In the present case, the obtainable position had been that though the appeal filed by the petitioner was pending but there was no interim order therein. It is noticed that the area in question was declared free for grant on 24.02.2007 and was notified for grant on 28.03.2007. The petitioner could have taken appropriate steps for pressing the prayer for interim relief during pendency of appeal, if so desired. It is noticed that the area in question was declared free for grant on 24.02.2007 and was notified for grant on 28.03.2007. The petitioner could have taken appropriate steps for pressing the prayer for interim relief during pendency of appeal, if so desired. The petitioner having failed to do so and there being no interim order operating, the allotment of the area to the respondent No.5 by the order dated 10.01.2008 after draw of lottery in her favour on 22.12.2007 cannot be said to be illegal or unauthorised from any angle. 11. In its order dated 14.12.2009, the Appellate Authority, even while observing that a lenient view be taken qua the petitioner and even while ordering restoration of the area in his favour upon deposit of the rent, interest and penalty, was aware of the position that there was no interim order operating in the appeal and hence, consciously made it clear that the said order for restoration would be effective only if the area was available for grant and had not been granted to anybody else. It is not in dispute that the said part of the appellate order had not been challenged by the petitioner at any stage or before any forum. We have gone through the petition for revision as filed by the petitioner before the State Government (Annex. 10) and even therein, we do not find any prayer by the petitioner for modification of the such terms of the order dated 14.12.2009 that effectively operate against him. 12. The said order dated 14.12.2009 with all its stipulations having attained finality, neither the Revisional Authority nor the writ Court could be faulted in declining the prayer as made by the petitioner. 13. Though the learned counsel for the petitioner-appellant strenuously pressed before us for consideration the elements of equity said to be existing in favour of the petitioner but, we are afraid, the balance of equity, in the given set of facts and circumstances of the case, is not in favour of the petitioner. The respondent No. 5, who had been granted the area in question by the order dated 10.01.2008 after the same was declared free for grant on 24.02.2007, cannot be said to have committed any wrong in applying for and in getting the same in allotment. The respondent No. 5, who had been granted the area in question by the order dated 10.01.2008 after the same was declared free for grant on 24.02.2007, cannot be said to have committed any wrong in applying for and in getting the same in allotment. The valid grant as made in favour of the respondent No. 5 on 10.01.2008 had been in operation for more than 2 years before the petitioner filed the revision petition questioning the same. With efflux and passage of time, the elements of equity have also come existing in favour of the respondent No. 5 and thus, even on equity, the petitioner cannot seek dislodging of the respondent No.5. 14. Having considered the matter in its totality, we are satisfied that the learned Single Judge has rightly dismissed the writ petition; and no case for interference in this intra-court appeal is made out, whether in law or in equity. 15. The appeal fails and is, therefore, dismissed. *******