Rajasthan High Court - Jaipur
Gauri Shanker vs State Of Raj And Anr on 24 November, 2017
Bench: K.S. Jhaveri, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 1701 / 2017
Gauri Shanker Son of Shri Kanhiyalal Baisala (Gurjar), Aged About
75 Years, Resident of Ramganjmandi, District Kota (Raj.)
----Appellant
Versus
1. State of Rajasthan Through Dy. Secretary, Mines Department,
Government Secretariat, Jaipur.
2. Mines Engineer, Ramganjmandi, District Kota (Raj.)
----Respondents
_____________________________________________________ For Appellant(s) : Mr. K.K. Sharma, Sr. Adv. with Ms. Alankrita Sharma _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 24/11/2017
1. By way of this appeal, the appellant has challenged the judgment and order of the learned Single Judge whereby he has dismissed the petition.
2. The facts of the case are that on 23.09.1983, the appellant submitted an application for grant of Mining Lease. On 7.12.2001 the appellant filed S.B.W.P. 4677/97 as no action was taken by the District Collector. The petition was decided directing the District Collector to act upon the letter sent to it by the mining engineer. However, liberty was granted to the appellant for revival of the petition in case NOC not granted. On 14.03.2002 District Collector expressed inability to grant NOC on the ground that panchayat had not granted NOC. The appellant filed an application for revival (2 of 5) [SAW-1701/2017] of S.B.C.P. No. 4677/97. It was stated that panchayat had communicated vide its letter dated 18.2.2005 that the erstwhile Pradhan had granted NOC vide its communication dated 21 st, August, 2001. The Panchayat Samit also granted NOC vide letter dated 15th, Feb, 2005. On 19.10.2006 the Court directed that documents be produced before the mining engineer and the mining engineer was further directed to take a decision within 15 days. On 7.11.2016 Mining engineer required the appellant to submit documentary evidence within 7 days. On 8.11.2016 the Mining Engineer expressed his inability to accept the application on the direction of a senior officer. On 9.11.2016 Mining engineer rejected the application for grant of mining lease. Appellant preferred a revision petition. Since the Revision petition of the appellant was not being decided the appellant preferred a Writ petition before this Court. On 24.1.2008 this Court directed the revisional authority to decide the revision petition within a period of 2 months. On 6.8.2008 revision petition dismissed by the authority on the ground that NOC from the District Collector or competent authority has not been obtained. The appellant filed S.B.C.W.P. No. 10739/2008 challenging the order dated 6.8.2008. On 12.9.2017 learned Single Judge dismissed the writ petition.
3. The learned Single Judge while considering the order of Deputy Secretary dated 6th August, 2008 observed as under:
"Learned counsel for the respondents has contested the writ petition. It is submitted that the State Government has issued a circular requiring approval of the Collector for pasture land and not of the Gram Panchayat. An order for set-apart of the pasture land can be passed by the Collector, however, if it is falling in the Gram (3 of 5) [SAW-1701/2017] Panchayat then it should be after NOC from the Panchayat. In view of the aforesaid, the Collector is final authority ever since and in absence of an order of the Collector, the application submitted by the petitioner for grant of mining lease was rejected. It is also stated that as per the new rules of Rajasthan Minor Mineral Concession Rules, 2017 (for short "Rules of 2017"), all the pending applications are treated to have been cancelled/rejected. Learned counsel for the petitioner, at this stage, submitted certain documents to show that on the basis of NOC of Gram Panchayat, mining lease had been earlier granted in the pasture land. I have considered the rival submissions made by learned counsel for the parties and perused the record. The application for grant of mining lease has been rejected in absence of an order of the Collector as the area was falling under pasture land. Learned counsel for the petitioner has referred Circular dated 10th February, 1982 during course of the arguments. The perusal of the Circular also reveals that Gram Panchayat would not have authority for the mining. As per the revenue laws, authority lies with the Collector to set-apart the pasture land thus if the respondents insisted for the order of the Collector, I do not find any illegality therein. It is, however, submitted that in past, mining leases were granted based on the NOC of Gram Panchayat alone. If that is so then also illegality cannot be perpetuated by this Court. When the revenue laws mandate so as the circular for an order of the Collector, mining lease cannot be granted based on the NOC of Gram Panchayat alone, rather, after NOC of Gram Panchayat, an order is to be passed by the Collector for set-apart of pasture land. Now, in view of the judgment of the Apex Court in the case of Jagpal Singh & Ors. Vs. State of Punjab & Ors. reported in AIR 2011 SC 1123, the pasture land cannot be allowed for any other purposes unless it falls in the exceptional category. The case in hand is not of such a nature thus I do not find any ground to cause interference in the impugned order for rejection of application for grant of mining lease. I am not going in the issue that now after introduction of the Rules of 2017, all the pending applications have lapsed. In view of the above, this writ petition is dismissed finding no merit therein."
4. However, learned counsel for the appellant contended (4 of 5) [SAW-1701/2017] that in view of the recent notification which has been issued by the State Government which reads as under:
Government of Rajasthan Revenue (Group-6) Department No. F.10(3) Rev-6/2001/19 Jaipur, Dated:- 31-05-2017 Notification In exercise of the powers conferred by section 257 of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955), the State Government hereby makes the fillowing rules further to amend the Rajasthan Tenancy (Government) Rules, 1955 and orders with reference to the proviso to sub-
section (1) of section 259 of the said Act that the previous publication of these amendment rules is dispensed with as the State Government considers it necessary that they should be brought into force at once, namely:-
1. Short title and commencement:- (1) These rules may be called the Rajasthan Tenancy (Government) (Amendment) Rules, 2017. (2) They shall come into force at once.
2. Amendment of rule 7:- In rule 7 of the Rajasthan Tenancy (Government) Rules, 1955:-
(I) after the existing first proviso and before the existing second proviso to sub-rule (1), the following new proviso shall be inserted, namely:-
"Provided further that the classification of pasture land shall not be changed as unoccupied culturable government land (Sawai Chak) for mining purposes without the prior permission of the State Government. The permission by the State Government shall be granted only if applicant has surrendered equal area of khatedari land in favour of the State Government in the same village or nearby village within the same Panchayat and has deposited development charges for the development of such surrendered land as pasture land. The development charges for the year 2017-18 shall be rupees fifty thousand per bigha or part thereof and for subsequent year it shall be increased by five perecent every year. The Development charges so deposited may also be used for the welfare of the cattle of the village by the village Panchayat with prior approval of the District Collector. The land so classified as unoccupied culturable government land (Sawai Chak) shall always remain and (5 of 5) [SAW-1701/2017] treated as government land for all purposes."; and
(ii) In sub-rule (2), fir the existing expression "in the same village", the expression "in the same village or nearby village within the same Panchayat" shall be substituted.
By order of the Governor, Sd/-
(P.S. Bishnoi) Joint Secretary to the Government.
5. It is contended that the appellant ought to have allowed NOC and Gram Panchayat ought to have referred it to the Collector for NOC.
6. Looking to the facts on record that the Mining Engineer while considering the order of the lower authority and taking into account non fulfillment of mandatory requirement of NOC from Collector, Kota and no objections of registered Khatedari and the other NOC for the purpose of road. In that view of the matter, we find no justification to interfere in the order of the learned Single Judge. Even otherwise, under the new Rules of 2017 all applications which were pending have lapsed.
The appeal stands accordingly dismissed. (PRAKASH GUPTA), J. (K.S. JHAVERI), J.
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