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2015 DIGILAW 802 (RAJ)

Mahesh Sankhla v. State of Rajasthan

2015-04-09

JAISHREE THAKUR, SUNIL AMBWANI

body2015
JUDGMENT 1. - We have heard learned counsel for the parties. 2. This writ petition has been filed in the public interest with the following prayers: “10. Relief(s) prayed for: It is therefore, humbly prayed that this petition in the form of Public Interest Litigation may kindly be allowed. By issuing an appropriate writ order or direction; (i) The respondents may kindly be ordered to stop any kind of mining activity in the Khasra No.1 of Village Boyal Tehsil Sojat City Dist. Pali which is recorded and has been using as Gochar Land. (ii) The State may further be directed to investigate into and to ascertain the damage/loss inflicted on the land, people, animal of the region; and cause reparation. (iii) The cost of the writ petition may kindly be awarded in favour of the petitioner. (iv) Any other writ, order or direction which your Lordship may deem just and proper in the facts and circumstances stated above, in favour of the petitioner may kindly be allowed.” 3. The pleadings have been exchanged. In pursuance of the order of this court dated 1.4.2015, the original record has been produced, which shows the deep and pervasive corruption prevailing in the office of the Mining Department. 4. The mining lease No.36/85 of which an area fell into two villages viz; Khasra No.1 in village Boyal and Khasra Nos.248 to 254 in village Basna in Tehsil Sojat City, District Pali, was the subject matter of the enquiry by the Collector, Pali in the Revenue Application No.8/1986 made by the villagers of village Boyal and Gadoliya Luhar Samiti, Sojat through Puna Ram against Prakash Chandra s/o Ram Chandra Bhati r/o Sojat City. The Collector, Pali, in his order dated 18.8.1986 found that the land in Khasra No.1 in village Boyal is a pasture land on which the lease could not have been granted. After hearing both the parties, he recorded the finding that the lease in Khasra No.1 in village Boyal was null and void from the very beginning and it did not give any rights to the lessee. He further held that despite his order, if the lessee tries to take possession or carry out the mining operations, steps will be taken to remove the encroachments and that the Mining Department will be intimated for cancellation of the lease. 5. He further held that despite his order, if the lessee tries to take possession or carry out the mining operations, steps will be taken to remove the encroachments and that the Mining Department will be intimated for cancellation of the lease. 5. The Collector in his order dated 18.8.1986 found that Gadoliya Luhar Samiti is recorded to be the khatedar of the land and that the consent given by the three persons individually claiming to be khatedars, will not be treated as valid consent because the land was in joint khatedari. The Collector in the operative part of the order recorded that so far as the mining operations on the land of the Gadoliya Luhar Samiti without their consent is concerned, the same was illegal and consequently, the lessee was restrained from mining in the area. The Collector also observed that the Assistant Mining Engineer has stopped the mining operation and that he may initiate proceedings under Section 89 (3) and (4) of the Rajasthan Land Revenue Act for grant of compensation to the khatedars. 6. The respondent-mine holder challenged the order of the Collector, Pali dated 18.8.1986 in a writ petition in which the following interim order was passed on 23.8.1986: “Issue notice of the stay application, returnable within two weeks. Notices be given 'Dasti' for service to the learned counsel. Meanwhile, petitioner shall be allowed to excavate the old mines which is already excavating in Khasra No.1 in village Boel. Petitioner shall not be allowed to excavate new area. The order will be effective after service on respondent No.1.” 7. The writ petition remained pending from 1986 to 1999. On 2.2.1999, a submission was made by learned counsel for writ petitioner Shri Prakash Chandra that as the mining lease has expired, the writ petition may be dismissed as withdrawn on which the following order was passed by the court: “Learned counsel for the petitioner wants to withdraw the writ petition, in view of subsequent events and expiration of lease in question. The writ petition is dismissed as withdrawn. 8. It appears that the lessee Prakash Chandra applied for renewal of the mining lease on 31.5.1995 after depositing Rs.500/- as fee and on which a report was submitted by the Assistant Mining Engineer, Sojat City, referring to the order of the Collector, Pali dated 18.8.1986. The writ petition is dismissed as withdrawn. 8. It appears that the lessee Prakash Chandra applied for renewal of the mining lease on 31.5.1995 after depositing Rs.500/- as fee and on which a report was submitted by the Assistant Mining Engineer, Sojat City, referring to the order of the Collector, Pali dated 18.8.1986. He also relied upon the policy letter of the State Government vide Circular No.F-9(11) Kh./Gr.2/91, dated 16.6.95 by which a clarification was issued on 16.6.1995 for renewal of mining leases and quarry licences to the effect that a fresh “No Objection Certificate” (NOC) will not be required that the land is pasture land. Para 2 of the Circular provided that the lessee/license holder will limit the mining work in the broken up pasture land if any, and for that purpose, it was provided in para 3 that an affidavit will be given that the mining work will not be carried out on new pasture land without permission of the Collector. The directions issued in the Circular are quoted below: jktLFkku ljdkj [kku xzqi&2 t;iqj }kjk tkjh ifji= dzekad % 81@11@[kku@xzqi&2@81@fnukad 16-06-1995 fo"k; % pkjkxkg Hkwfe esa [kuu iV~VkA Dokjh ykbZlsal vkfn ds uohuhdj.k ds laca/k esaA 1- pkjkxkg Hkwfe esa [kuu iV~Vk Dokjh ykbZlsal vkfn ds laca/k esa bl foHkkx ds le&la[;d ifji= fnukad 23-06-1993 ,oa 12-08-1994 esa vkaf'kd la'kks/ku fd;k tkdj ;g funsZ'k fn;s tkrs gSa fd [kuu iV~Vk@Dokjh ykbZlsal dk uohuhdj.k djus ls iw.kZ pkjkxkg Hkwfe ds laca/k esa vukifRr izek.k i= izkIr djuk vko';d ugha gSA 2- iV~Vk/kkjhA ykbZlsal/kkjh iwoZ esa czksduvi pkjkxkg Hkwfe ;fn dksbZ gks rks mlesa gh [kuu dk;Z lhfer j[ksxkA 3- iV~Vk/kkjhA ykbZlsal/kkjh }kjk ;g 'kiFk i= izLrqr fd;k tkosxk fd og u;s pkjkxkg {ks= esa jktLo foHkkxA ftyk dysDVj dh vuqefr ds fcuk [kuu dk;Z ugha djsxkA 9. It was not open the respondent mine holder to carry out the mining work nor any renewal could be allowed after the interim order dated 23.8.1986, expired with the dismissal of the writ petition on 2.2.1999 as withdrawn, inasmuch as the mining lease of pasture land was held to be non est in the order of the Collector dated 18.8.1986, and further in the observation of the Collector that in view of the fact that the NOC was not obtained from the Society and the proceedings under section 89 (3) and (4) have not been finalized. The Mining department however relying upon the Circular dated 16.6.1995 made a recommendation for renewal of the mining lease and on which the mining lease was renewed for carrying out the mining in Khasra No.1 of village Boyal on 29.6.1996 for a period of twenty years. 10. The original record produced by the department will show that despite noticing the order of the Collector, Pali dated 18.8.1986 declaring the mining lease to be non est, the Mining Department renewed the mining lease, relying on the Circular dated 16.6.1995, which had no application to the case. 11. Having realised that the mining could not have been granted on the pasture land and after having withdrawn the writ petition as well as the subsequent writ petition being SBCWP No.1983/1986 in which an interim order was passed to comply with the stay order dated 23.8.1986, the respondent mine holder appears to have filed a civil suit and obtained an interim injunction order dated 3.9.2011 (Annex.R/6/10), which is quoted below: 03-09-2011 %& izkFkhZ vf/k0 Jh jes'k Vkad izkFkhZ vizkFkhZ la0 1 dh vksj ls fyfid Jh nsokuan gkftj vk;s o cdk;k dh tkjhlqnk gLrk{kj ds ckn fyfid us rkehysa ugha Hksth vc rkjh[k c<+kdj Hksth tkosA ua0 1 dh vksj ls tokc Vh0vkbZ0 gsrq le; pkgk i=koyh okLrs tokc Vh0vkbZ0 ua0 1 o rudh uEcj 2 ls 4 gsrq fnukd 17-09-2011 dks is'k gksA rc rd vizkFkhZ izkFkhZ dh yhtMhM fujLr u djs o [kuu dk;Z esa ck/kk mRiUu u djsA ,l0Mh0 flfoy tt ( d0[k0 ) lkstr 12. It is submitted that the respondent mine holder got the writ petition as withdrawn on the statement that whereas the lease is renewed on the ground that the interim order is operating and relying upon the Circular of the Mining Department, which has no application to the case, faced with the situation that the mining may be stopped, filed and obtained an interim order without disclosing the order of the Collector, Pali dated 18.8.1986 and the previous litigation. 13. It is submitted that the respondent mine holder played fraud with the court in which after withdrawing the writ petition, he obtained renewal of the mining lease for a period of twenty years, despite declaration by the Collector in his order dated 18.8.1986. 13. It is submitted that the respondent mine holder played fraud with the court in which after withdrawing the writ petition, he obtained renewal of the mining lease for a period of twenty years, despite declaration by the Collector in his order dated 18.8.1986. He submits that the respondent mine holder in connivance with the officials of the Mining Department keeping the entire proceedings under cloud in which the mining lease should have been cancelled, obtained renewal on 29.6.1996 for a period of 20 years and thereafter, having obtained renewal, got the writ petition dismissed as withdrawn on the ground that the lease has been renewed. 14. Learned counsel for the respondent mine holder has relied on the policy of the State Government, as referred-to above. It is submitted that the Collector had not cancelled the lease. He had only recommended the cancellation of the lease. The Assistant Mining Engineer had stopped the mining work in pursuance of the recommendation of the Collector. The renewal was made after considering the interim order dated 23.8.1986 passed by this court as well as the policy of the State Government in which fresh NOC was not required to be filed for renewing the lease of the portion of the land, which did not include the pasture land in its area. 15. Learned counsel for the respondent mine holder further submits that he had agitated the matter right from the beginning that the land allotted for mining activity in village Boyal is not a pasture land and the land in village Basna related to the Gadoliya Luhar Samiti. He submits that he has not concealed any fact from the Mining Department. The interim order was granted on 23.8.1986 by this court on merits of the case and that the order of the Collector dated 18.8.1986 was considered by the Mining Department before the mining lease was renewed for a period of twenty years. He further submits that the question as to whether the land under mining lease is a pasture land, has been the subject matter of litigation from time to time. He further submits that the respondent has only protected his legal rights in accordance with law and that if the Mining Department did not consider the order of the Collector dated 18.8.1986, he cannot be put to any fault. 16. He further submits that the respondent has only protected his legal rights in accordance with law and that if the Mining Department did not consider the order of the Collector dated 18.8.1986, he cannot be put to any fault. 16. After hearing the learned counsel for the parties, we find that a fraud has been practised by the lease holder on the court in connivance with the officials of the Mining Department. The mining lease was permitted on the area falling in Khasra No.1 of village Boyal, which was admittedly pasture land. The Collector after hearing the villagers, had recorded a finding that the land in village Boyal of Khasra No.1 is a pasture land on which the lease could not have been granted. So far as the area of the lease in other village is concerned, he found that the land is recorded in the name of the Gadoliya Luhar Samiti and directed the proceedings for compensation to be initiated under the provisions of the Rajasthan Land Revenue Act. The order of the Collector was challenged by the respondent mine holder in which a very limited interim order was passed allowing him to mine in the area, which is not 'Gochar' land. The respondent mine holder continued to mine in the areas from 1986 to 1996, after which he applied for renewal and gave the affidavit that he was not required to take NOC, which in fact was not taken afresh for renewal of the lease. The Mining Department had taken into consideration the order of the Collector but without considering the gravity and seriousness of the matter and the fact that the mining lease could not have been granted on 'Gochar' land, relied on interim order dated 23.8.1986 passed by this court in granting renewal of the lease to respondent mine holder. Having secured the advantage of the interim order dated 23.8.1986 under which he continued to mine in the area for ten years, the mining lease was renewed by order dated 29.6.1996. The respondent mine holder after getting the mining lease renewed, got the writ petition withdrawn. 17. The order of the Collector declaring that the lease was non-est for the areas, which were in village Boyal and which were pasture land, has not been set aside till date. The respondent mine holder after getting the mining lease renewed, got the writ petition withdrawn. 17. The order of the Collector declaring that the lease was non-est for the areas, which were in village Boyal and which were pasture land, has not been set aside till date. The Mining Department, instead of passing consequential order in pursuance of the directions, contained in the order of the Collector dated 18.8.1986, continued to sleep over the matter. We find that no effective steps were taken to get the interim order dated 23.8.1986 vacated and in any case, since we find that the order of the Collector dated 18.8.1986 had become final, inasmuch as the same was not challenged any further, the mining lease could not have been renewed on 29.6.1996. The order of renewal was passed by concealing the material facts and on the basis of the interim order in the writ petition, which was later on withdrawn and thereby taking away the entire basis for the renewal of the mining lease. 18. On the aforesaid facts and circumstances of the case as well as the discussion, made as above, the writ petition is allowed. The grant of mining lease No.36/1985 to the respondent-mine holder is held to be void from the very beginning and since the order of the Collector dated 18.8.1986 has not been set aside, its validity cannot be tested after a lapse of almost 29 years, specially when the writ petition challenging the order was withdrawn. The order of renewal dated 29.6.1996 is also illegal and, consequently, set aside. The respondent mine holder will not have any right to mine in any part of the area of the lease. Despite the order dated 18.8.1986 declaring the mining lease to be null and void ab initio by the Collector, the respondent mine holder continued to mine in that area and that since the renewal of the mining lease was illegal, it will be appropriate for the Collector, Pali to initiate proceedings against the respondent-mine holder for awarding compensation to the villagers. It will also be open to lodge F.I.R. against the respondent-mine holder and all such officials in the Mining Department, who are responsible in connivance with the respondent-mine holder in allowing renewal of lease, with the Anti Corruption Bureau of the State in accordance with law.Writ Petition Allowed. *******