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2018 DIGILAW 22 (RAJ)

Rakesh Dhariwal v. State of Rajasthan

2018-01-02

M.N.BHANDARI

body2018
JUDGMENT : Mr. M.N. Bhandari, J. 1. With consent of the parties, writ petition has been heard finally. 2. The writ petition was filed to seek a direction on the Mining Engineer to proceed pursuant to notice dated 4th August, 2011 and seek rider agreement by inducting the petitioner as partner of the firm i.e. M/s. Balaji Marbles Mines. BRIEF FACTS OF THE CASE: 3. This case has chequered history, however, it is summarised in order of events. A mining lease was executed in favour of the partnership firm namely, M/s. Balaji Marbles Mines, Makrana, District Nagour. The petitioner was having partnership to the extent of 35%. A dispute about partnership came and decided by the Registrar (Firms) when petitioner was ousted from the partnership firm. The Registrar (Firms) passed order in favour of the petitioner on 2nd August, 2011. The direction was given for restoration of the partnership of the petitioner. The order of the Registrar (Firms) was challenged by the other party by maintaining a writ petition before the Principal Seat at Jodhpur. The writ petition was filed even to challenge the notice dated 4th August, 2011 passed by the Mining Engineer for execution of rider agreement. The order dated 2nd August, 2011 of Registrar (Firms) and the notice dated 4th August, 2011 were set aside. The petitioner preferred special appeal before the Division Bench where initially an interim order was passed and thereupon special appeal was allowed. Accordingly, order of the Registrar (Firms) dated 2nd August, 2011 and notice for execution of the rider agreement dated 4th August, 2011 were maintained. The partnership firm preferred Special Leave Petition before the Apex Court, however, order of the Division Bench was not interfered but SLP was disposed of vide order dated 19th February, 2016 with the following order: "Delay condoned. Special Leave Petition is dismissed. However, it will be open to the petitioner to approach the civil court for redressal of its grievance or for challenging the order passed by the Registrar of Firms. We clarify that the observations made by the High Court shall not influence the civil court and the civil court will decide the matter in accordance with law if and when any proceedings are initiated in a civil court." 4. We clarify that the observations made by the High Court shall not influence the civil court and the civil court will decide the matter in accordance with law if and when any proceedings are initiated in a civil court." 4. The present writ petition was filed, in the meanwhile, when the Mining Engineer did not proceed pursuant to the notice dated 4th August, 2011 for execution of the rider agreement. According to the learned counsel for petitioner, rider agreement should be executed and if it is not executed then pursuant to Rule 18(21a) of the Rajasthan Minor Mineral Concession Rules, 1986 (for short "the Rules of 1986"), the Mining Engineer should cancel the mining lease. Since the mining engineer failed to proceed in the matter thus writ petition was filed. It is moreso when notice dated 4th August, 2011 even prevents issuance of ravannas in absence of the rider agreement. An interim order was passed by this court on 21st September, 2016 stopping mining operation as otherwise no mining operation could have been carried out unless ravannas are issued. The partnership firm was excavating minerals despite notice dated 4th August, 2011. The ravannas could not have been issued by the Mining Engineer unless rider agreement is executed. In view of the above, a direction is sought to proceed in the matter pursuant to notice dated 4th August, 2011. 5. Learned Additional Advocate General Shri Anurag Sharma submits that due to various orders at different levels, the Mining Engineer could not proceed in the matter pursuant to notice dated 4th August, 2011. Initially, the order passed by the Registrar (Firms) and the notice were stayed by the Principal Seat at Jodhpur. The writ petition was finally allowed where the order of the Registrar (Firms) dated 2nd August, 2011 and notice dated 4th August, 2011 were set aside. The Division Bench, however, passed an interim order in favour of the petitioner but due to pendency of appeal, action could not be taken. The special appeal preferred by the petitioner was allowed by the Principal Seat at Jodhpur. The SLP preferred thereupon by the partnership firm was dismissed by the Apex Court. The department was then to take action in the matter but due to pendency of the present writ petition, action could not be taken. The special appeal preferred by the petitioner was allowed by the Principal Seat at Jodhpur. The SLP preferred thereupon by the partnership firm was dismissed by the Apex Court. The department was then to take action in the matter but due to pendency of the present writ petition, action could not be taken. After passing of the interim order dated 21st September, 2016, mining operation was stopped when the stay order came in the knowledge of the State Government. A senior foreman was deputed to make report and, accordingly, on 3rd October, 2016, a report was submitted that no mining operations are going on. They would take action immediately, if a direction is given in the present writ petition. 6. Learned counsel appearing for private respondent Nos.5 to 9 has opposed the petition. The facts on record have not been disputed but it is submitted that subsequent to the SLP before the Apex Court, a civil suit has been filed and is pending consideration. In the light of the civil suit, further directions in the case may not be given. The suit has been preferred pursuant to liberty given by the Apex Court and would determine rights of the parties. It is more specifically in pursuance of order of the Registrar (Firms). If order is set aside, it will have consequence even on the notice dated 4th August, 2011 to seek rider agreement. He further submits that certain orders were passed by the Registrar (Firms) even subsequent to the order dated 2nd August, 2011 and all those orders are also relevant and material for the purpose of disposal of the present writ petition. 7. It is, however, admitted that notice dated 4th August, 2011 was challenged by the partnership firm by maintaining a writ petition before the Principal Seat at Jodhpur and after acceptance of writ petition, order of the Single Bench was reversed by the Division Bench and thereby, notice dated 4th August, 2011 has been maintained. A prayer is, however, made not to issue positive directions in reference to the notice dated 4th August, 2011 due to pendency of the civil suit. 8. A prayer is, however, made not to issue positive directions in reference to the notice dated 4th August, 2011 due to pendency of the civil suit. 8. Having heard learned counsel for the parties, it comes out that notice dated 4th August, 2011 for execution of rider agreement has been upheld by the Division Bench in special appeal preferred by the petitioner to challenge the order passed by the Single Bench at Principal Seat, Jodhpur. In view of the above, the department was expected to proceed in the matter either to seek execution of the rider agreement or in absence of it to proceed in consonance to the rules, then existing. 9. Now, new Rules of 2017 has come into effect thus present writ petition needs to be disposed of with a direction to the Mining Department to proceed in the matter in pursuance of notice dated 4th August, 2011 and take action in accordance with the provisions of law. It is, however, made clear that any action taken therein would remain subject to the order of the civil court in the pending suit though order of the Registrar (Firms) has been challenged in civil suit and not the notice dated 4th August, 2011. The requirement of rider agreement is, however, in reference to the order passed by the Registrar (Firms) and therefore, observation aforesaid has been made by this court. Till further action in the matter is taken, the mining operations would not be allowed, rather, Mining Department is directed to consider the issue as to whether excavation of mineral was permissible after issuance of notice dated 4th October, 2011 where restrained order was passed to issue ravannas. If ravannas were issued unauthorisedly or contrary to the order then to take action against the officer concerned and to consider the matter as to whether excavation of minerals can be considered to be legal or it is illegal. If excavation of minerals is found to be illegal then to proceed in the matter in consonance to the provisions of law.