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2014 DIGILAW 2041 (RAJ)

Panna Lal Patel v. State of Rajasthan

2014-12-08

P.K.LOHRA, SUNIL AMBWANI

body2014
Hon'ble AMBWANI, ACTG. C.J.—We have heard learned counsel appearing for the parties. 2. These cases have a chequered history, which needs to be narrated before coming to the merits of the case. 3. Shri Panna Lal Patel, the petitioner applied for mining lease of 10,000 sq.m. for mining serpentine (green marble) near village Duchki (Rohanwara) Tehsil and District Dungarpur on 27.08.1991. 4. The Mining Policy of 1994 was notified on 06.10.1994 providing that all pending applications shall be rejected and fresh applications will be invited and considered under the Marble Policy of 1994. The writ petitions were filed in this Court challenging the policy. In Rajsamand Chamber of Commerce and Industry vs. State of Rajasthan & Ors.: AIR 1996 Rajasthan 38 = RLW 1996(1) Raj. 224, a Division Bench of this Court upheld the new policy on the ground that it was made under Rule 65A of the Rajasthan Minor Mineral Concession Rules, 1986 (‘the Rules’). 5. The petitioner's application dated 27.08.1991 came to be rejected under Clause 9 of the Marble Policy of 1994, which came into effect on 06.10.1994 and which provided for automatic/deemed rejection of the applications pending on the date of coming into force of the Policy. A revision petition filed against the order dated 28.04.1995 was rejected on 02.01.1996. A review petition was filed by the petitioner in the year 1996. It was rejected on 09.08.2004, as it was not maintainable. The order dated 09.08.02004 was not challenged by the petitioner. With the rejection of the review petition, the matter came to be closed and nothing was pending either with the competent authority or the State Government when the petitioner filed a writ petition (S.B.Civil Writ Petition No.3826/2005) Panna Lal Patel vs. State of Rajasthan and Ors. The High Court without referring to the previous proceedings and without adverting to the facts of the case, disposed of the writ petition on 08.07.2005 with the following order:- “Heard learned counsel for the petitioner. The only prayer of the petitioner in the writ petition is that the State may be directed to decide the petitioner’s representation dated 28.08.2004 copy of which is placed on record as Annex.14. The only prayer of the petitioner in the writ petition is that the State may be directed to decide the petitioner’s representation dated 28.08.2004 copy of which is placed on record as Annex.14. In view of this limited prayer, the writ petition of the petitioner is disposed of with the direction to the State to decide the petitioner’s representation within a period of two months from the date of supply of certified copy of this order to the competent authority by the petitioner.” 6. The petitioner made representation to the State Government which was considered for grant of relaxation under Rule 65 of the Rules and the same was rejected on 12.04.2006. 7. In the year 2002, the State of Rajasthan had introduced a new policy known as ‘Rajasthan Marble Policy, 2002 by notification dated 01.03.2002 under Rule 65A of the Rajasthan Minor Mineral Concession Rules, 1986. Clause 1 and 13 of the new policy relating to the size of the plots for award of mining lease or quarry licence are quoted below:- 1. Grant of mining lease in Government land.- (1) Mining lease or quarry licence in the Government land shall be granted by method of application under Chapter II or III of Rajasthan Minor Mineral Concession Rules, 1986 as the case may be. Provided that where the Government land has been reserved under rule 73 of the Rajasthan Minor Mineral Concession Rules, 1986 and availability of marble deposit has been ensured by a team consisting of Superintending Geologist and Superintending Mining Engineer, the plots for mining lease/ quarry licence shall be delineated and allotted by application. (2) The plots delineated under proviso to sub clause (1) shall be notified for grant of mining lease/ quarry licence by the Director with the prior intimation to the Government, in at least two daily news papers having wide circulation in the State. The notification shall be published at least 30 days before the date of receipt of applications in respect of grant of mining lease/quarry licence. (3) The size of plot shall be 4.00 hectares but in may be changed by the Director for reasons to be recorded in writing. .... “13. The notification shall be published at least 30 days before the date of receipt of applications in respect of grant of mining lease/quarry licence. (3) The size of plot shall be 4.00 hectares but in may be changed by the Director for reasons to be recorded in writing. .... “13. Grant of a mining lease or quarry licence in the existing areas.-(1) In the existing areas of mining lease/ quarry licence the new lease/licence shall be granted by application under Chapter II or III of the Rajasthan Minor Mineral Concession Rules, 1986 as the case may be, on the condition that mine machinery as prescribed in Annexure-1 of this notification shall be deployed. (2) Where the size of plot/area available for grant is less than 2.00 hectares, the lease/licence shall be granted to any one adjoining lease / licence holder by auction amongst them and it shall be added to the existing lease/licence. (3) Where the size of a plot/area available for grant is 2.00 hectare or more, the lease / licence shall be granted by open auction. (4) Wherever possible the size of a plot/ area shall be increased up to 4.00 hectares by combining two or more plots or otherwise and it shall be granted as per sub-clause (1). Provided that two or more existing mining lease/quarry licences may be combined to make an area upto 28.00 hectares to facilitate scientific and mechanized mining. (5) Where Government land is available, a strip of land upto 100 metres wide shall be kept reserved around the existing mining boundaries for allotment to the adjoining lessees/ quarry licensees to facilitate increase in the size of existing mining lease / quarry licence. The area of the strip shall be allotted to the adjoining lessees / licensees by application on merit and may be added to their existing mining lease / quarry licence.” 8. The Rajasthan Marble Policy,2002 provided for minimum plot size of 4.00 hectares for grant of mining lease or quarry licence with the powers to the Director under Clause 1 (3) to change the plot size for reasons to be recorded in writing. Clause 13 (2) provided that where size of the plot/area available for grant is less than 2.00 hectares, the lease/license shall be granted to any one adjoining lease / licence holder by auction amongst them and it shall be added to the existing lease/licence. Clause 13 (2) provided that where size of the plot/area available for grant is less than 2.00 hectares, the lease/license shall be granted to any one adjoining lease / licence holder by auction amongst them and it shall be added to the existing lease/licence. Sub-clause (3) of Clause 13 provided that where the size of a plot/area available for grant is 2.00 hectare or more, the lease / licence shall be granted by open auction. 9. The new policy did not provide for deciding any application under the previous policy of 1994, if it was pending prior to issuance of the new policy on 01.03.2002 and thus, in accordance with the new Rajasthan Marble Policy, 2002 since the area in question was less than even 2.00 hectares, the lease could only be granted by auction. 10. The petitioner submitted a representation to the State 5 Government pursuant to the order dated 08.07.2005 on which a report was submitted on 09.06.2008 that though Clause 1(3) of new Marble Policy, 2002 provided for minimum plot size of 4.00 hectares, but as the application was pending since 1991 and considering the directions issued by the High Court at Jodhpur, the consideration may be made for relaxation under Clause 1(3) of the Marble Policy, 2002. 11. The Superintending Engineer (Mines) considering the report submitted to him issued an order on 16.06.2008 for grant of mining lease. The order for grant of mining lease was passed in favour of the petitioner on 24.07.2008, to issue the grant after securing compliance of the approved mining plan, echo friendly mining plan and all other environmental guideline under the Rajasthan Marble Policy, 2002. 12. The petitioner again filed S.B. Civil Writ Petition No.2019/2008, in which, once again this Court passed orders to decide petitioner’s representation vide order dated 25.03.2008 directing the respondents to decide the representation was challenged by Shrichand Jain (D.B. Civil Special Appeal (W) No.04037/2009: Shrichand Jain vs. State of Rajasthan & Ors.), decided on 08.12.2010. The Division Bench in special appeal after hearing the parties remanded the matter to be decided on merits and in pursuance thereof, learned Single Judge by a judgment dated 20.12.2013 dismissed the S.B. Civil Writ Petition No.2019/2008: Panna Lal Patel vs. State of Rajasthan & Ors. The Division Bench in special appeal after hearing the parties remanded the matter to be decided on merits and in pursuance thereof, learned Single Judge by a judgment dated 20.12.2013 dismissed the S.B. Civil Writ Petition No.2019/2008: Panna Lal Patel vs. State of Rajasthan & Ors. and allowed the S.B. Civil Writ Petition No.3726/2009: M/s Solanki Marmo Grani Pvt. Ltd. vs. State of Rajasthan & Ors., on the findings that S.B. Civil Writ Petition No.2019/2008 was filed by petitioner on wrong facts. This Court was misled in issuing the orders for deciding his representation. The observations made by learned Single Judge arriving at the conclusion of misleading facts are quoted below:- “In support of the aforesaid review petition (Annex.-8), an affidavit was filed by the petitioner Panna Lal which is also on record along with the review petition. After perusing the aforesaid assertion made by the petitioner, I am of the firm view that totally wrong assertions were made by the petitioner to review the order passed by the revisional authority dated 02.01.1996. Therefore, it is a case in which the petitioner has not only persuaded this Court to pass an order on the basis of review application but he is also guilty of filing review petition on false grounds because in the form of revision application specific information was sought from the petitioner whether he has filed the revision petition within three months of the order passed by the competent authority and petitioner replied “gkW". Therefore, there is no question of saying that no opportunity was given by the revisional authority to furnish grounds and reasons for condonation of delay. It apears from the facts that the petitioner has not only mentioned wrong facts in the review petition but also misled this court that his application is pending so as to obtain order from this Court on 25.03.2008 which was subsequently quashed by the Division Bench in D.B.Civil Special Appeal (W) No.4037/2009 vide order dated 08.12.2010 and disposed of the special appeal with request to the learned Single Judge to hear and decide the matter afresh on merit. In view of above, at this stage, in the year 2013, no case is made out for quashing order dated 28.04.1995 passed by the Assistant Mining Engineer, Dungarpur and to quash order dated 02.01.1996 passed by the revisional authority. Consequently, this writ petition is hereby dismissed.” 13. In view of above, at this stage, in the year 2013, no case is made out for quashing order dated 28.04.1995 passed by the Assistant Mining Engineer, Dungarpur and to quash order dated 02.01.1996 passed by the revisional authority. Consequently, this writ petition is hereby dismissed.” 13. We are informed that in pursuance to the directions issued by learned Single Judge, the Office Order issuing mining lease dated 24.7.2008 has been cancelled by the order dated 20.8.2014. The said order has not been challenged by the petitioner by filing any amendment application. It is stated that the order dated 20.8.2014 was not served upon the petitioner and that a copy of the order was supplied on 29.11.2014. Since, this order is consequen-tial to the orders passed by learned Single Judge, we do not propose to go into the validity of the said order while deciding the matters on merits. 14. It is submitted by learned counsel appearing for the petitioner Panna Lal Patel that the petitioner has been pursuing the subject area for mining since the year 1991. His application was wrongly rejected and that revision was also wrongly dismissed on the ground of limitation. A review petition was maintainable but without considering the merits, the review petition was also rejected. The petitioner was not represented in the revision which was dismissed on the ground of limitation. He could not place the facts and the legal position before the Revisional Authority. It is submitted that petitioner’s application was pending consideration and that he had simply made a prayer to decide his representation. The competent authority did not commit any error of law in granting relaxation which was permissible in view of Rule 65 and 65A of the Rules and under Clause 1(3) of the new Marble Policy of 2002. The lease was granted to him, on which he has purchased machinery and made huge investments. It was well known to the respondents that area/size is 1.00 hectare and they being fully conscious of the area, the competent authority granted relaxation in accordance with the powers vested in them. It is submitted that the petitioner did not mislead the Court by placing wrong facts. It was stated in the writ petition that revision was dismissed as time barred and order in review petition was never intimated to the petitioner. It is submitted that the petitioner did not mislead the Court by placing wrong facts. It was stated in the writ petition that revision was dismissed as time barred and order in review petition was never intimated to the petitioner. It is submitted that once a lease has been granted in accordance with law and in pursuance of the directions of the Court, this Court should not ordinarily interfere with nor any such findings are required to be given in the special appeal arising out of the judgment of learned Single Judge who did not consider the matter on merits. 15. Learned counsel appearing for the private respondent submits that after rejection of the application for grant of mining lease under Clause 9 of the Marble Policy of 1994 and the orders dated 02.01.1996 rejecting the revision petition as well as the order dated 09.08.2004, rejecting the review petition, nothing was pending which could be directed to be decided by this Court on 08.07.2005, in pursuance to which, the mining lease was granted. He submits that the petitioner misrepresented the facts in a manner that the Court may believe that his case for granting mining lease was still pending. He has relied upon the judgment in Hamza Hazi vs. State of Kerala and Anr. : AIR 2006 SC 3028 , in which the Hon’ble Supreme Court held that where the fraud is played upon the Court by misrepresenting the facts, the party relying upon such misrepresentation cannot be permitted to take benefit out of the order passed on such misrepresentation. 16. After having heard learned counsel appearing for the parties, we find that petitioner’s application dated 27.08.1991 was rejected on the ground that it could not be decided within the time prescribed under the Rules. In revision, the matter was remanded and that application came to be dismissed on the ground that the petitioner could not produce NOC from the Collector and Assistant Conservator of Forest, Dungarpur. In the meantime, a new Marble Policy of 1994 was introduced and that all pending applications stood rejected. The application could not be revived by the petitioner unless he had challenged the orders dismissing his revision within reasonable time. In the meantime, a new Marble Policy of 1994 was introduced and that all pending applications stood rejected. The application could not be revived by the petitioner unless he had challenged the orders dismissing his revision within reasonable time. He kept the matter pending for reasons best known to him and in the meantime, the new Rajasthan Marble Policy of 2002 was issued providing for a special procedure for allotment which provided for grant of mining lease for not less than 4.00 hectares of land. The relaxation could only be given under Clause 1(1) in accordance with the special procedure provided under the policy itself. There is no such discretion vested in the competent authority to violate the policy for any individual on the ground that such person had applied and was pursuing for the grant of mining lease for a particular area for a long period of time. The mining policy could not be changed or over-reached for benefiting any individual. Further, we find that in the given case, the recommendation of relaxation was given solely on the ground that the direction has been issued by the High Court. The direction was issued by a purportedly innocuous order, which had far reaching consequences. The Court was not made aware nor considered the new Mining Policy, 2002, which did not provide for allotment of any lease for less than 4.00 hectares, and the case set up by the petitioner did not make any exception in which a reduced area could be considered for mining under the new Policy. The orders were passed to decide the representation on the facts which were not considered by the Court. The order was rightly set aside by the Division Bench remanding the matter back to the learned Single Judge. The petitioner could not have taken any advantage nor any relaxation could be given to the petitioner in view of the orders passed by this Court which were later on set aside. 17. We are of the view that learned Single Judge has not committed any error of law in holding that a misleading statement was made by the petitioner in the memo of revision in which he had mentioned that revision was within limitation. 17. We are of the view that learned Single Judge has not committed any error of law in holding that a misleading statement was made by the petitioner in the memo of revision in which he had mentioned that revision was within limitation. A review was not maintainable, and that after issuance of new Policy of 2002, his application did not require any further consideration as it was for the area of less than 4.00 hectares. In fact, it was for an area which was even less than 2.00 hectares and, thus, mining lease could only be given by way of open auction. 18. We do not find any merit in the special appeals filed by the petitioner. Both the special appeals are dismissed.