Rajasthan High Court - Jaipur
Smt Harmaya vs State Of Raj And Ors on 1 June, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2744/2011
Smt. Harmaya W/o Late Shri Brijendra Singh, R/o Brijendra
Bhawan, Roopwas, Distt. Bharatpur
----Petitioner
Versus
1. State Of Rajasthan Through Principal Secretary,
Department Of Mines And Geology, Government
Secretariat, Jaipur
2. Deputy Secretary To The Government, Mines Gr.2
Department, Government Of Rajasthan Secretariat, Jaipur
3. The Director, Department Of Mines And Geology,
Government Of Rajasthan, Udaipur
4. The Mining Engineer, Department Of Mines And Geology,
Bharatpur
----Respondents
Connected With S.B. Civil Writ Petition No. 8743/2010 Smt Harmaya W/o late Shri Bridendra singh, resident of "Brijendra Bhawan", Roopwas, Distt. Bharatpur.
----Petitioner Versus
1.State of Rajasthan through Principal Secretary, Department of Mines & Geology, Government Secretariat, Jaipur.
2.The Director, Department of Mines & Geology, Government of Rajasthan, Udaipur.
3.The Mining Engineer, Department of Mines & Geology, Bharatpur.
----Respondent For Petitioner(s) : Mr. Kamlakar Sharma, Senior Advocate, assisted by Ms. Alankrita Sharma For Respondent(s) : Mr. S. Zakawat Ali, Addl.G.C. HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order (Downloaded on 22/09/2019 at 12:09:09 AM) (2 of 13) [CW-2744/2011] 1st of June, 2019 Above-noted two writ applications involve inextricably interlined factual matrix, and therefore, have been taken up for final adjudication together by this common order, consented by the counsel for the parties.
2. Briefly, the essential skeletal material facts necessary for appreciation of the controversy are: that the petitioner's application instituted under the provisions of Rule 74 of the Rajasthan Minor Mineral Concession Rules, 1986 (for short, "the Rules of 1986"), was not determined for long, and therefore, she instituted connected the writ application bearing S.B. Civil Writ Petition Number 8743/2010, with a prayer for determination of the pending application and to open mutation in her name in place of her deceased husband i.e. Late Shri Bijendra Singh. So soon the State-respondents were served with the notice on the connected writ application, the impugned orders dated 20 th December, 2010 (Annexure-14), and dated 3rd February, 2011 (Annexure-15), were made and addressed to the petitioner, of which she is aggrieved of. It is pleaded case of the petitioner that her husband, Late Shri Bijendra Singh, was granted a mining lease for sand stone in District Bharatpur since 1970. The mining lease was renewed from time to time. On 12th October, 1999, Late Shri Bijendra Singh submitted an application in the office of Mining Engineer, Bharatpur, for extension of the lease period from 10 years to 20 years. As a consequence vide order dated 1 st January, 2000, the mining lease was extended from 5 th January, 1990 to 4th January, 2010 i.e. for 20 years instead of original grant for 10 years with effect from 5th January, 1999 to 4th January, 2000, in terms of Rule 16(2) of the Rules of 1986. Late Shri Bijendra Singh died on 25 th (Downloaded on 22/09/2019 at 12:09:09 AM) (3 of 13) [CW-2744/2011] December, 1999. The petitioner, wife of Late Shri Bijendra Singh, submitted an application on 13 th December, 2000, for mutation of the mining lease in her name as she was the successor enclosing affidavit in support of the application as well as power of attorney. For the petitioner was not able to undertake extensive travelling, she appointed her son Sribhan Singh as her power of attorney, who was also looking after the mining operations since death of her husband.
3. Mr. Kamlakar Sharma, learned Senior Advocate, on behalf of the petitioner, reiterating the pleaded facts and grounds of the writ applications, contended that the State-respondents ought to have granted the application of the petitioner in terms of Rule 74 of the Rules of 1986, which clearly contemplates that where an applicant claiming grant or renewal of mining lease/quarry licence dies before the order granting him/her a mining lease/quarry licence or its renewal, is passed; the application for the grant or renewal of a mining lease/quarry licence shall be deemed to have been made by his/her legal representative(s).
4. According to the learned counsel, case of petitioner was for renewal of mining lease under Rule 17 of the Rules of 1986 and not one for grant of fresh lease, and therefore, there was no need of any rider agreement, enclosing power of attorney of Late Shri Bijendra Singh instead of the petitioner, which was executed by inadvertence. Further, an agreement under Rule 19 of the Rules of 1986, is required to be executed in Form No.5 of the Rules of 1986, which had already been executed and existed in the name of Late Shri Bijendra Singh.
5. Referring to the communication dated 28 th August, 2006, learned Senior Advocate could contend that the Mining Engineer, (Downloaded on 22/09/2019 at 12:09:09 AM) (4 of 13) [CW-2744/2011] Bharatpur, was directed by the Additional Director Mines (Headquarters), Jaipur, referring to earlier communication dated 13th February, 2001; to identify the legal representative/successor and open mutation in the case at hand. And in the event of any difficulty, in identifying the legal successor, a Succession Certificate may be obtained for the matter was pending since 2001. Reference has also been made to another communication dated 12th September, 2006, wherein the Assistant Mining Engineer, Bharatpur, while addressing the Additional Director (Mines), Directorate, Mines & Geology, Rajasthan (Udaipur), made reference to letter dated 12th September, 2006, with the statement that the petitioner was entitled, in view of the documents and materials available on record, for mutation of the mining lease in her favour. The communication also specifically indicated that after 30th October, 2000, no objection was received from anyone, and therefore, sought permission to proceed further to conclude the mutation proceedings and close the matter.
6. Learned Senior Counsel also referred to a representation dated 14th October, 2009, addressed by the petitioner with a prayer for mutation of the mining lease in her name in terms of Rule 74 of the Rules of 1986. However, the State-respondents instead of opening mutation in the name of the petitioner vide impugned order dated 20th December, 2010, terminated the mining lease of the petitioner in terms of Rule 72 of the Rules of 1986 and also declined the application of the petitioner for renewal of the mining lease vide impugned order dated 3 rd February, 2011, stating dispute of succession, and the power of attorney, that was enclosed post death of Late Shri Bijendra (Downloaded on 22/09/2019 at 12:09:09 AM) (5 of 13) [CW-2744/2011] Singh; which rendered the order dated 1 st January, 2000, and the rider agreement dated 8th May, 2000; illegal.
7. Per contra, Mr. S. Zakawat Ali, Additional Government Counsel for the State-respondents, while supporting the impugned orders and action in declining claim of the petitioner, contended that the case at hand is, a case of fraud played by the petitioner. And therefore, the action of the State-respondents in terminating the mining lease so also application seeking renewal and mutation vide impugned orders dated 20th December, 2010 and 3rd February, 2011, cannot be faulted.
8. Referring to Rule 72 of the Rules of 1986, it is further urged that no mining lease can be granted otherwise than in accordance with the provisions of the Rules of 1986; and if granted, shall be deemed to be null and void. Reference has also been made to the notice dated 20th November, 2000, wherein the petitioner was called upon to show cause for violations of the provisions of the Rules of 1986. Hence, both writ applications merit rejection.
9. I have heard the learned counsel for the parties and with their assistance, perused the relevant materials available on record as well as gave my thoughtful consideration to the submissions at Bar.
10. Before proceeding to examine the controversy raised, it will be profitable to take note of the text of the relevant rules of the Rules of 1986, which reads thus:
"8 Disposal of applications for the grants and renewal of the mining lease:-
1 [(1) An application for grant of mining lease shall be disposed off by the competent authority. The competent authority, after taking decision to grant precise area, shall issue letter of intent to the applicant to submit mining plan (Downloaded on 22/09/2019 at 12:09:09 AM) (6 of 13) [CW-2744/2011] along with progressive mine closure plan to the authorised officer of the State Government for its approval, within a period of three months:
Provided that the competent authority may also seek such other documents as he may deem fit and where the environment clearance is required to be submitted, the period for its submission shall be twelve months. Provided further that the above period may be extended by the competent authority subject to payment of late fees at the rate of 6% of annual dead rent for every month or part thereof of such extended period.] (2) 1[An application for renewal of mining lease shall be made at least 12 months before the expiry of the mining lease and shall be disposed of before the expiry of lease and if the application is not disposed of within that period, the lease shall be deemed to have been extended by a further period till final orders are passed on the renewal application by the competent authority."] 2 [Provided that the mining lease for mineral bajri, shall not be renewed;] 3[ ] 4 [Provided further that after 31.12.2013, during the extended period, no mining operation shall be carried out or allowed to be carried out by the lessee till the lease is renewed.] 16 Period of lease:-
1 [(1) The maximum period for which a 2 [mining lease except lease for mineral bajri may be granted] shall not exceed 3 [thirty years.] Provided that the minimum period for which any such mining lease may be granted shall not be less than 3 [twenty years.]] (2) 4 [Notwithstanding anything contained in the instrument of mining lease, the period of lease of existing mining leases at the time of commencement of these rules, may also be extended to a period falling short of 3 [30 years] subject to the conditions that:-(Downloaded on 22/09/2019 at 12:09:09 AM)
(7 of 13) [CW-2744/2011] (1) The mining waste / debris has been dumped at place(s) duly approved by the Mining Engineer / Assistant Mining Engineer.
(2) No case of illegal mining has been made out against the lessee during the last three years. (3) The area held by the lessee does not exceed 10 sq. Kms.] 5 [(4) The area held by the lessee does not fall in any type of Forest land.] 6 [(3) Notwithstanding anything contained in sub-rule (1) and (2) mining lease for mineral bajri shall be granted for a period of five years only.] 17 Renewal of Mining Lease:-
(1) On an application being made in this behalf and where such application is found complete in all respect, the competent authority shall renew the mining lease for a 2 [period not exceeding 30 years] and where the competent authority is satisfied that mines have been worked properly and that substantial investment in machinery and equipment have been made by the lessee, the competent authority may further grant subsequent renewals each for a period 1 [up to 7 [30]] years 8 [subject to the condition that total period of the lease shall not exceed 3 [90 years.]] 2 [Provided that the mining lease for mineral bajri shall not be renewed.] Provided further that where the lease is so renewed the dead rent shall be revisable after every five years from the date of renewal according to the formula given under rule 18 (3) for revision of dead rent.
Provided further that the competent authority while granting the renewal of mining lease 1 [may reduce] the area of the lease so that the area sanctioned to the lessee shall in no case exceed 10 sq. Kms. 2 [ ] 3 [Provided also that where lessee applies for renewal after reducing the original area in more than one (Downloaded on 22/09/2019 at 12:09:09 AM) (8 of 13) [CW-2744/2011] blocks, in such cases renewal of reduced area in more than one block may be allowed subject to condition that every block to be renewed shall not be less than the prescribed size.] 4[(2) where the application for renewal has been received after the period prescribed in rule 8(2), it shall be entertained on the payment of the following penalties:
5 [Period of delay Amount of penalty
(a) Up to one month 1% of the existing annual dead rent subject to a minimum of Rs.500.00
(b) Up to two months 2% of the existing annual dead rent subject to a minimum of Rs.1000.00
(c) Up to three months 3% of the existing annual dead rent subject to a minimum of Rs. 1500.00
(d) Up to 6 months 10% of the existing annual dead rent subject to a minimum of Rs 3000.00
(e) More than 6 months but 25% of the existing before expiry of lease annual dead rent subject to a minimum of Rs.
10000.00 ] (3) Notwithstanding anything contained in the instrument of the mining lease, if the application for renewal has not been disposed of before the expiry of the lease it shall be deemed to have been extended by a further period till the competent authority passes order thereon. The dead rent 2 [after expiry of lease period shall be as per the revised dead rent referred to in sub rule (3) of rule 18.]] 6 [Provided that after 31.12.2013, during the extended period, no mining operation shall be carried out or allowed to be carried out by the lessee till the lease is renewed.] (4) (a) In case of renewal of mining lease after the expiry of the lease period, the dead rent from date of expiry of the previous lease to the date of execution of the renewed lease deed shall be as per the sanction of renewal. (b) In case of revocation of the sanction for renewal on failure of execution of the lease agreement by the lessee, the dead rent as per sanction for the renewal be charged from the date of expiry of the previous lease to the date of taking over possession. 1 [(5) The competent authority may, while granting renewal of a mining lease, impose conditions relating to mechanization, development of mines and (Downloaded on 22/09/2019 at 12:09:09 AM) (9 of 13) [CW-2744/2011] establishment of mineral based industry after obtaining prior approval of the Government by a general or specific order.] 19 Execution of Lease:- (1) Where the lease has been granted or renewed under these rules the grantee shall pay demarcation fee, get the area demarcated, 2 [deposit the security, performance guarantee] along with one quarterly installment of annual dead rent and submit requisite stamps for execution of formal lease deed in form No. 5 within 45 days from the date of receipt of order for grant. (2) The lease dead shall be executed within 3 months from 3 [the date of receipt of order of grant] and the competent authority shall sign the agreement on behalf of Governor of Rajasthan as required under Article 299 of the Constitution of India. (3) The lease deed shall be got registered by the grantee within a period of 2 months form the date of receipt of the lease deed from the Mining Engineer / Assistant Mining Engineer for the purpose and shall be returned to the Mining Engineer / Assistant Mining Engineer after registration within the said period. (4) Where the grantee fails to comply with the provisions of sub-rule (1) above within a period of 45 days from the date of receipt of the order for grant or he fails to execute the lease within 3 months form the date of receipt of order for grant or fails to return the registered lease documents within a period of 2 months provided under sub-rule (3) the order granting the lease may be revoked and amount of security and dead rent deposited by him may be forfeited.
1 [Provided that if the grantee completes the formalities mentioned in sub-rule (1) before issue of revocation order in sub-rule (4), the competent authority may allow for execution the agreement mentioned in sub-rule (2) subject to payment of late fee @ 9% of annual dead rent for every month of delay or part thereof.] Provided 2 [further] that where the authority competent to grant the lease is satisfied that there are sufficient reasons to believe that the grantee is not 3 [responsible for the delay in the execution / registration of lease deed, he may permit the execution / registration and return of the lease deed] 1 [before issue of revocation order in sub-rule (4).] 1 [Provided also that if the grantee returns registered lease deed before issue of the revocation (Downloaded on 22/09/2019 at 12:09:09 AM) (10 of 13) [CW-2744/2011] order under sub-rule (4), then sanction shall not be revoked, if the grantee pay the late fee @ 9% of annual dead rent for every delay of a month or part thereof within 15 days of submission.] (5) When a mining lease is granted by the State Government or the competent authority, arrangements shall be made at the expenses of the lessee for the survey and demarcation of the area granted under the lease. Provided that where the Mining Engineer / Assistant Mining Engineer concerned feel it necessary to demarcate the area before issuing an order of grant for mining lease, he may ask the applicant to deposit the demarcation charges within time specified by him and get the area demarcated. Provided further that if the applicant fails to comply with such order the application for grant of mining lease shall be rejected. 4 [Provided also that the lessee, after demarcation of the granted area, shall construct boundary pillars and maintain them throughout the period of lease. Provided also that re-verification of boundary pillars shall also be carried out on the request of the lessee but the expenses of the re-verification shall be twice the amount of demarcation fee given in the Note below:] 5 [Note: Expenses for demarcation shall be:-
(a) Rs. 1000/- per Hectare or part thereof for area up to one hectare. (b) Rs. 800/- per Hectare or part thereof for area more than 1 hectare but up to 5 hectare.
(c) Rs. 200/- per Hectare or part thereof for the area more than 5 hectares subject to minimum Rs. 4000/-
and maximum Rs. 20000/-] 1 [(6) Notwithstanding anything contained in sub-rule (4), where the execution / registration of lease deed could not be performed due to objection raised by District Collector or other authorities with no fault of the grantee, sanction issued may be revoked by the competent authority after taking approval of Director. In such case 2 [security deposit, performance guarantee, advance installment of dead rent and application fee deposited] by grantee shall be refunded.] 72 Mining operations to be under lease or licence:- No mining lease, quarry licence, short-term- permit or any other permit shall be granted otherwise than in accordance with the provisions of these rules and if granted shall be deemed to be null and void. (Downloaded on 22/09/2019 at 12:09:09 AM)
(11 of 13) [CW-2744/2011] 74 Status of the grant on the death of applicant for mining lease / quarry licence:-
(1) Where an applicant for grant or renewal of mining lease / quarry licence dies before the order granting him a mining lease / quarry licence or its renewal is passed the application for the grant or renewal of a mining lease / quarry licence shall be deemed to have been made by his legal representative. (2) In the case of an applicant in respect of whom an order granting or renewing a mining lease / quarry licence is passed, but who dies before the deed referred to in sub-rule (2) of rule 19 is executed, 2 [or before quarry licence is issued] the order shall be deemed to have been passed in the name of the legal representative of the deceased."
11. Indisputably, the application for renewal was instituted by Late Shri Bijendra Singh in his lifetime on 12 th / 14th October, 1999 in accordance with the Rules of 1986. It is also not in dispute that Late Shri Bijendra Singh executed a power of attorney in favour of his son (Shribhan Singh) so also in the name of his wife (the petitioners). A Will was also executed in favour of his wife (petitioner). The order dated 1st January, 2000, was made in terms of Rule 16(2) of the Rules of 1986, extending the period of mining lease from 10 years to 20 years i.e. with effect from 5 th January, 1990 to 4th January, 2010. It appears, as argued, that it was on account of inadvertence that the power of attorney executed by Late Shri Bijendra Singh in favour of his son (Shribhan Singh) was enclosed with the rider/supplementary agreement while seeking renewal of the mining lease instead of power of attorney that was executed by the petitioner in the name of the same son (Sribhan Singh). Admittedly, after 30th October, 2000, there was no complaint received from the other son i.e. Om Prakash Singh. That apart, dispute, if any, in that eventuality was required to be (Downloaded on 22/09/2019 at 12:09:09 AM) (12 of 13) [CW-2744/2011] resolved resolved in accordance with the law of succession for Rule 74 of the Rules of 1986, in no uncertain terms contemplates that status of grant, on death of the applicant for mining lease/quarry licence, shall be deemed to have been made by his legal representative.
12. From the Scheme of the Rules of 1986, it is reflected that the deed referred to under sub-rule (2) of Rule 19 of the Rules of 1986, is to be in Form No.5 according to the model form of mining lease, which in the case at hand indisputably was already in existence in the name of Late Shri Bijendra Singh. Hence, the rider/supplementary agreement was not required to be executed and if executed would be of no consequence in view of the Scheme of the Rules of 1986.
13. The mere fact that the power of attorney of Late Shri Bijendra Singh executed in favour of Sribhan Singh was enclosed with the rider/supplementary agreement while seeking renewal of the mining lease vide application dated 13 th December, 2000, instead of power of attorney executed by the petitioner in favour of her same son (Shribhan Singh); in the factual matrix obtaining in the case at hand cannot be construed to be a fraud for the simple reason that Late Shri Bijendra Singh executed a Will in favour of the petitioner and Sribhan Singh held power of attorney from Late Shri Bijendra Singh so also from the petitioner.
14. Admittedly, the mining lease was operated until 2010 for no order was made on the application instituted by the petitioner seeking mutation/renewal of the mining lease and in the face of contemplation under Rule 8(2) of the Rules of 1986, contemplating deemed extension until disposal of the application by the competent authority.
(Downloaded on 22/09/2019 at 12:09:09 AM)
(13 of 13) [CW-2744/2011]
For the application seeking mutation/renewal was not
disposed off before the expiry of the lease, the lease shall be deemed to have been extended by a further period till final orders are passed on the renewal application by the competent authority.
15. For the reasons and discussions aforesaid and keeping in view the contemplation of the Rules of 1986 so also in the conspicuous factual matrix of the case at hand; the claim of the petitioner merits acceptance.
16. Accordingly, writ applications instituted by the petitioner are hereby allowed. Impugned orders dated 20 th December, 2010 and 3rd February, 2011, are quashed. The State-respondents are directed to do the needful in terms of Rule 74 of the Rules of 1986, according renewal of the mining lease, if the petitioner otherwise eligible. The State-respondents are further directed to ensure compliance of this order within two months from the date a certified copy of this order is presented.
17. However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDR SINGH SIRADHANA),J SUNIL SOLANKI /19/85-86 (Downloaded on 22/09/2019 at 12:09:09 AM) Powered by TCPDF (www.tcpdf.org)