Rajasthan High Court - Jodhpur
Girdhari Lal vs State & Ors on 17 May, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15150 / 2016
Girdhari Lal S/o Sh. Kalyanmal, Aged About 61 Years, R/o
Alaniyavas, Tehsil-Tiyan Badi, District-nagaur
----Petitioner
Versus
1. State of Rajasthan Through the Secretary, (Group-2) Mining
Department, Govt. Secretariat, Jaipur.
2. Director, Department of Mining & Geology, Udaipur.
3. District Collector, Nagaur.
4. Sub-Divisional Officer, Riyan Badi, District-Nagaur.
5. Asst. Mining Engineer, Mining Department, Gotan, District-
Nagaur.
6. Meghraj Singh Sekhwat, S/o Sh. Kalyan Singh, R/o C-28,
Hanuman Nagar, Khatipura, Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. M.S.Purohit.
For Respondent(s) : Mr. M.S.Singhvi, Sr. Advocate with
Mr. Akhilesh Rajpurohit & Mr. Rakesh Chotia.
Ms. Suman Porwal.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 17/05/2017 The matter comes up on an application filed by the respondent no. 6 seeking vacation of interim order dated 5/1/2017 passed by this Court, whereby, the respondents were directed not to permit excavation of mineral 'Bajri' from the land comprising in Khasra No. 399-400 and it was made the responsibility of respondent nos. 2 and 3 to ensure that no excavation of mineral is made from the land in question.
(2 of 7) [CW-15150/2016] At the request of learned counsel for the parties, the matter was finally heard.
This writ petition has been filed by the petitioner claiming himself to be a permanent resident of village Aalaniya Bas, Tehsil Riyan Badi, District Nagaur. It is claimed that the petitioner was seeking to espouse the cause against misuse of public property and for protection of environment, rivers and 'Bajri' of the area. It is inter alia alleged in the writ petition that licence was granted to respondent no.6 on 19/12/2013 and conditions whereof were being violated by him. It is alleged that the various complaints and representations were made to the Collector and other authorities regarding the misuse of the licence and that mining activity was being conducted in the area other than Khasra No. 399-400. Reliance has been placed on 'Seema-Gyan' report dated 4/12/2015 indicating the status of mining activity and it is alleged that the same reflects illegal mining. It is further indicated in the writ petition that the land of Khasra No.399-400 is 'Gochar' land and, therefore, no licence could have been granted for mining. Based on the said submissions, a prayer was made to stop mining in village Aalaniyha Bas, Tehsil Riyan Badi, District Nagaur and for taking action against respondent no.6.
The order dated 5/1/2017 was passed by this Court and as noticed hereinbefore notices were ordered to be issued.
Relies have been filed by respondent Mining Department and respondent no.6.
It is inter alia submitted on behalf of the Mining Department that the allegations made in the writ petition are in the nature of (3 of 7) [CW-15150/2016] public interest litigation and, therefore, the writ petition was maintainable only before the Division Bench.
Further submissions were made that after issuing the notification under the provisions of Minor Mineral Concession Rules, 1986 ('the Rules, 1986'), upon receiving the bids and accepting the bid in favour of respondent no.6, the Letter of Intent was issued to him. Whereafter, a temporary work permit dated 28/2/2014 was issued to the respondent no.6 in terms of the orders passed by Hon'ble Supreme Court in a pending litigation and, thereafter, in terms of Forest Rules and Regulations, the respondent no.6 was undertaking the mining activities, however, after receiving interim order from this Court the respondent no.6 has been directed to stop the mining activities.
Further submissions have been made that the allegations regarding the land in question being 'Gochar' land are ex facie incorrect and against the revenue record. A joint inspection report dated 29/2/2016 has been filed as Annex.R/1 regarding the mining area comprised in Khasra no. 399-400 and it has been indicated that Naib Tehsildar has shown the land in question as 'Gair Mumkin Nala' and the same is not a pasture land. Regarding the alleged illegal mining, it has been specifically indicated that the mining activity was being conducted in terms of the license issued to the respondent no.6.
On behalf of the respondent no.6 the bonafides of the petitioner in filing the present writ petition have been questioned. Various submissions have been made to indicate that repeated attempts have been made to somehow stop the respondent from (4 of 7) [CW-15150/2016] undertaking the mining activity pursuant to the licence granted in his favour, whereby, several litigations have been launched before various forums including at Jaipur Bench of this Court and before the National Green Tribunal and on failure to obtain any favourable order from other forms, the present writ petition has been filed alleging mining in pasture land. With reference to various Jamabandi starting from Samvat Year 2010 to 2047, it was submitted that the land in question of Khasra No.399-400 has been indicated as 'Gair Mumkin Nala' and though after the said period from Samvat Year 2048 onwards the classification of the land continues to be 'Gair Mumkin Nala', a note has been put that same is available only for grazing. It is submitted that putting up of said note apparently does not change the classification/nature of the land and does not make the same a pasture land, unless action in accordance with the provisions of Rule 5 and 6 of the Rajasthan Tenancy (Government) Rules, 1955 ('the Rules, 1955') is undertaken and, therefore, it cannot be said that the land in question is a pasture land.
Further submissions were made that the petitioner has no locus standi insofar as the filing of present writ petition is concerned, and the same is only an exercise, which is tainted with malafides.
Reliance has been placed on S.P. Chengalvaraya Naidu v. Jagannath & Ors. : (1994) 1 SCC 1, Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General of Maharashtra, Bombay : (1970) 2 SCC 484, Shobha Suresh Jumani v. Appellate Tribunal, Forfeited Property & Anr. : (2001) 5 SCC 755 and Sciemed Overseas Inc. v.
(5 of 7) [CW-15150/2016] BOC India Limited & Ors. : (2016) 3 SCC 70.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the licence issued to the respondent No.6 (Annex.1) indicates that the same has been issued in pursuance to the order dated 25.11.2013 passed by the Hon'ble Supreme Court, whereby the temporary permission has been granted. The respondent No.6 has been granted permission to undertake mining operation for mineral 'Bajri' in the 'Gair Mumkin Nadi/ Nala'.
The petitioner for alleging illegal mining has placed strong reliance on Seema Gyan report (Annex.3) prepared by the Up- Tehsildar. Further reliance has been placed on the Jamabandi (Annex.5) for Samvat Year 2060-63 indicating the land of Khasra No.399-400 though classified as 'Gair Mumkin Nala', in the column pertaining to the name of cultivator the same has been indicated as ufn;kSa rFkk ukys (pkjkxkg gsrw). Further in the rejoinder filed by the petitioner, further reliance has been placed on certain reports given by the Tehsildar, Riyan Badi and Land Record Inspector regarding the complaints made during the pendency of the writ petition.
So far as the submission made regarding the nature of the land in question is concerned, a bare look at the Jamabandi produced by respondent No.6 pertaining to the period since Samvat Year 2010, clearly indicates, in fact reiterated in the Jamabandi filed by the petitioner himself, the classification of the (6 of 7) [CW-15150/2016] land to be 'Gair Mumkin Nala' and the indication throughout in column no. 4 pertaining to the name of land owner/cultivator has been indicated as ufn;kSa - ukyk / ukys, however, in Jamabandi of Samvat 1948-51, a note has been put indicating the land for grazing only. There is apparently no support for placing the said note in the Jamabandi. Provisions of Rule 6 of the Rules, 1955, provides a procedure for earmarking of the pasture land regarding which there is no reference in the Jamabandi. Further the joint inspection report produced by the Mining Department dated 29.2.2016, apparently deals with all the objections raised by the petitioner, wherein based on the report of Naib Tehsildar, it has been indicated that the land in question is 'Gair Mumkin Nala' and not a pasture land. So far as the allegations about illegal mining is concerned, in the report dated 29.2.2016, after survey by the Mining Engineer Nagaur, Mining Engineer (Vigilance), Nagaur and Assistant Mining Engineer, Gotan it has been categorically found that the mining operation was going on in the allotted land.
It would be relevant to notice that the report dated 4.12.2015 (Annex.3), sought to be relied on by the petitioner, was forwarded to respondent no.6, to which a response was given by him and after considering the same, the report was prepared on 24.2.2016 indicating that there is no violation of the licence conditions.
It would be relevant to notice that one Rajesh Kumar Dheru, resident of Jaipur, filed an application before the National Green Tribunal pertaining to the same licence granted to respondent no.6 and on account of pendency of the dispute before Hon'ble (7 of 7) [CW-15150/2016] Supreme Court, the National Green Tribunal after seeking reports in this regard, by its order dated 6.3.2017, consigned the matter to record, giving liberty to the applicant to approach the Hon'ble Supreme Court and in the alternative to approach the Tribunal after the matter is decided by Hon'ble Supreme Court.
In view of overall circumstances, which have come on record and there being prima facie no substance in the submissions sought to be made by the petitioner, questioning the mining operation being undertaken by respondent no.6 pursuant to the licence granted to him, apparently no interference is called for in the present writ petition.
As the issues raised by the petitioner have been examined on merits on account of the material available on record, as the respondent Mining Department and respondent no.6 both have filed reply on merits as well, the objections raised by the respondent no.6 as well as respondent-Mining Department pertaining to the maintainability of the writ petition/objection as to the locus standi of the petitioner including malafides in filing of the petition have not been examined.
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.
(ARUN BHANSALI)J. Baweja/-