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2017 DIGILAW 574 (RAJ)

Kalyan Bheel v. State Of Rajasthan

2017-02-16

M.N.BHANDARI

body2017
JUDGMENT M.N. Bhandari, J. - By this writ petition, a prayer is made for cancellation of mining lease dated 28.9.2010 to the extent of the agriculture land belonging to the petitioners. 2. Learned counsel submits that in a land belonging to the petitioners, a mining lease was granted in favour of private company without a consent thus were not permitted to excavate the mineral. The official respondents even granted first and second renewal but respondent company was not permitted excavation of mineral. The third renewal was granted with consent of the petitioners and for which an order was passed under section 89 of the Act of 1956 but it was on certain conditions. The fourth renewal of lease was granted without consent of the petitioners though required thus it is illegal. The land should accordingly vest in favour of the petitioners. 3. It is submitted that even while passing the order under section 89 of the Rajasthan Land Revenue Act, 1956 (for short ''the Act of 1956''), section 42 of the Rajasthan Tenancy Act, 1955 (for short ''the Act of 1955'') was ignored. The petitioners are Scheduled Tribes thus land belonging to them could not have been sold or gifted to a general caste or a company. The grant of mining lease and perpetual renewals would deprive the petitioners from khatedari rights in the land thus to be treated to be a sale in violation of section 42 of the Act of 1955. 4. It is further submitted that even while passing the order under section 89 of the Act of 1956, a condition was imposed regarding employment of one of the family member of the petitioners, however, after giving appointment to one of the family members as Helper, terminated his services later on thus even violation of the order passed by the Collector under section 89 of the Act of 1956 has been made. 5. It is lastly contended that section 89 of the Act of 1956 applies to the land of river. The land belonging to private khatedar cannot be subjected to section 89 of the Act of 1956 thus, for that reasons also, grant of fourth renewal of lease without taking consent of the petitioners becomes illegal thus relief prayed in the writ petition may be granted. 6. Learned counsel for petitioners has made a reference of the circular dated 30.9.2010 to support his argument. 6. Learned counsel for petitioners has made a reference of the circular dated 30.9.2010 to support his argument. As per the said circular, consent before renewal needs to be taken. It is further submitted that the circular referred by the State Government has no application as it was issued subsequent to the renewal of the mining lease. 7. Learned counsel for the respondents have contested the writ petition. It is submitted that the order passed under section 89 of the Act of 1956 is not under challenge thus any argument regarding said order cannot be raised. It is more so when the order was passed after taking care of section 42 of the Act of 1955. If the petitioners were aggrieved by the said order, then could have challenged it but, without challenge, rather, after taking compensation and employment, order aforesaid has been questioned. 8. It is further submitted that two family members were given employment by the respondent company, however, after some time, they left the job at their own. Their services were not terminated. If their services would have been terminated then they were expected to send a notice to the company or would have approached the Collector for violation of his order under section 89 of the Act of 1956. 9. It is lastly contended that for every renewal, consent is not required, rather, once consent is recorded for grant of lease, it remains for renewal of the mining lease. The clarification to this effect was made in the subsequent circular. So far as circular referred by the petitioners is concerned, it has no application for grant of mining lease or for renewal, rather, it is applicable when, after grant of mining lease, excavation of the mineral is to be made. In view of the above, no case is made out for grant of relief prayed in the writ petition. It is also submitted that earlier circular dated 15.11.1995 is applicable in this case. 10. I have considered rival submissions of the parties and perused the record. 11. It is a case where mining lease was granted to the respondent company in the land belonging to the petitioners followed by renewals. The Collector had passed an order on 22.7.1988 after providing opportunity of hearing to both the parties at the time of third renewal. 10. I have considered rival submissions of the parties and perused the record. 11. It is a case where mining lease was granted to the respondent company in the land belonging to the petitioners followed by renewals. The Collector had passed an order on 22.7.1988 after providing opportunity of hearing to both the parties at the time of third renewal. The order was passed in exercise of the powers under section 89(3), (4) and (5) of the Act of 1956. All the relevant aspects were considered while passing the order which includes compensation and section 42 of the Act of 1955. It was held that section 42 of the Act of 1955 has no application as it is not a sale or gift of the land. The khatedari of land would exist in favour of the petitioners. The petitioners did not challenge the said order despite a reference of section 42 of the Act of 1955 therein. In view of above, petitioners are estopped to raise the issue aforesaid in the present writ petition when they have not questioned the order passed by the Collector on 22.7.1988 under section 89 of the Act of 1956 and even accepted the benefits given therein. 12. The question now remains as to whether consent of the land holder is required for renewal of lease. Reference of three circulars has been given, out of which, one was issued in the year 1995. As per the circular, consent is not required for every renewal. Subsequent circular dated 30.9.2010 has been filed by the petitioners but it has no application to the present case. The circular dated 30.9.2010 talks about consent before mining of the area and not for grant of mining lease, if obtained at the time of mining lease. 13. In the instant case, consent has been recorded by the Collector while passing order under section 89 of the Act of 1956 on 22.7.1988. The order passed by the Collector has not been challenged. The subsequent renewals do not require consent thus the argument of learned counsel for the petitioners that fourth renewal could not be given without consent of the petitioners, cannot be accepted even in reference to the circular dated 30.9.2010. 14. The question now comes about violation of the condition of the order passed by the Collector. The subsequent renewals do not require consent thus the argument of learned counsel for the petitioners that fourth renewal could not be given without consent of the petitioners, cannot be accepted even in reference to the circular dated 30.9.2010. 14. The question now comes about violation of the condition of the order passed by the Collector. It is submitted by learned counsel for petitioners that one family member was employed but, later on, his services were terminated. The statement aforesaid has been denied by learned counsel for the respondent company, rather, reply shows that two family members were employed but they stopped coming after working for some time. 15. I find that if family member was terminated or discontinued, petitioners were expected to send a notice to the company or information to the Collector alleging violation of the condition. In any case, when non-petitioner company had made commitment for employment to one of the family members of the petitioners, then the company is under an obligation to fulfill the same. 16. In view of aforesaid, while disposing of the writ petition a direction is given to the respondent company to employ one family member of the petitioners. The petitioners would be at liberty to nominate one of the family member who is fit for employment. The nomination may be made within 30 days from the date of receipt of copy of this judgment. On nomination by the petitioners, respondent company would make verification and, if nothing adverse exist, would give him employment on the post not below the rank of Helper. The other prayers made in the writ petition are not accepted.