Rajasthan High Court - Jodhpur
Lok Hitkarni Chimni Bhatta S.S. Ltd vs State & Ors on 10 November, 2008
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
O R D E R
S.B. CIVIL WRIT PETITION NO.6438/2008 (Lok Hitkarni Chimni Bhatta Sahakari Samiti Ltd., Hanumangarh Vs. State of Raj. & Ors.) Date of order : November 10th 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. B.L. Purohit, for the petitioner.
Mr. A.K. Rajvanshi, Addl. Advocate General.
By way of filing the present writ petition, the petitioner has prayed for quashing of the order dated 12.8.2008 (Annexure-37) passed by the District Collector, Hanumangarh and for quashing of the order dated 14.8.2008 (Annexure-38) purporting to reserve the lands of Sq. No.37 for the Government Offices. Further, it is prayed that the action taken by the Naib Tehsildar (Annexure-39) in pursuance of the Tehsildar's and Collector's order dated 12.8.2008 may 2 be quashed. So also, it is prayed that notice dated 14.8.2008 (Annexure-43) issued by the Tehsildar (Revenue), Hanumangarh in pursuance of the order dated 12.8.2008 may be quashed and set aside. Further, a direction has been sought for handing over the bricks attached by the Naib Tehsildar to the petitioner.
According to the facts of the case, the petitioner is carrying business of mining operations upon 19 bighas and 16 biswas of the lands in Sq. No.37 as per mining patta Annexure-9 granted by the Mining Engineer. The said patta granted by the Mining Engineer is valid upto 31.10.2008. According to the petitioner, the Collector, Hanumangarh issued a notice on 1.1.2003 to the petitioner alleging that the period of lease was not extended after 26.9.1995, therefore, mining operations carried out by the petitioner is in violation of Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 (hereinafter referred to as "the Conditions of 1966" only). In pursuance of the said notice dated 1.1.2003, the petitioner filed his reply to the Collector, Hanumangarh Annexure-36 in which it is pointed out that as per the judgment rendered by Hon'ble Rajasthan High Court in case of Mohd. Bux Vs. State of Raj, reported in AIR 1993 Raj. 211, it has been held that Condition No.6, 7, 9, 10, 11 and 12 of the Conditions of 1966 are ultra vires and those Conditions were declared invalid, therefore, as per Condition No.10 of 3 the Conditions of 1966, there is no requirement of any renewal of license. Further, it is brought to the notice of the Court that the Assistant Mining Engineer, Sriganganagar has granted lease in favour of the petitioner, which is valid upto 30.10.2008. Therefore, the proceedings undertaken vide notice dated 1.1.2003 may be dropped. But, according to the petitioner without considering and ignoring the fact that Condition nos.6, 7, 9, 10, 11 and 12 of the Conditions of 1966 were declared illegal in case of Mohd. Bux (supra), the District Collector has passed the impugned order whereby he has directed the Tehsildar to recover a sum of Rs.6,93,334/- and Rs.6,79,467/- and further directed that if any case is made out under Section 89 (7) and 91 of the Land Revenue Act and under Section 22 of the Colonization Act then he may file suit for that.
Learned counsel for the petitioner has challenged the validity of the said order passed by District Collector although on various grounds but basic ground is that proceedings were initiated by the District Collector under the Conditions of 1966 and after the judgment of this Court in case of Mohd. Bux (supra), there is no power left with the District Collector to initiate any proceedings, so also there is no question of getting any renewal under Condition No.10 of the Conditions of 1966.
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Learned counsel for the petitioner vehemently argued that although the judgment rendered by Full Bench of this Court was brought to the notice of the District Collector but District Collector although observed in the impugned order that there is judgment but the land is 'rakbaraj', therefore, lease is required to be cancelled. In the operative part of the order dated 12.8.2008 Annexure-37, following assertion has been made :
"...... व द सम म क यह ब न भ ल
ज व कक नन य उच नय य लय न ल ज कण शनस 1966 क
कछ श ववम! ववरद घ%व& कर द ह(, % भ रकब र ज ह%न
स यह ल ज ख ररज य%गय बन ह( । यह भ-म आब द ऐररय 0
आन0 स पद&
- ण ह% रह ह( । गढढ5 क क रण दघ6टन ओ9 क
आश9क ओ9 स भ इनक र नह 9 ककय ज सक । अ : उक द%न5
भटट5 क भ-म आर ज र ज ह%न स ल ज! र क क%ई ववम!क
अम!क र भ नह 9 बन ।"
Learned counsel for the petitioner submits that the District Collector has no regard to the judgment even rendered by Full Bench of this Court in case of Mohd. Bux (supra). After the judgment of Mohd. Bux (supra), all powers for grant of lease is left with the Mining Department and the petitioner - Samiti is holding a valid license issued by the competent authority, which is valid upto 30.10.2008, therefore, the Collector has acted in contravention of the judgment rendered by Full Bench of this Court, so 5 also, the Collector has passed impugned order without any jurisdiction. If any contravention is made by the petitioner - Samiti then only the Mining Engineer can take action against the petitioner - Samiti. No power is left with the District Collector to interfere in the petitioner's business because the petitioner is holding a valid license, which is issued by the Mining Department. Therefore, on the basis of said judgment, the order of the District Collector is totally without jurisdiction and have no force of law. Therefore, the impugned order may kindly be quashed and set aside and it may be held that no enquiry can be initiated by the District Collector, Hanumangarh on the ground that there is no renewal of lease after 1995 by the District Collector.
In reply to the notice issued by this Court, it is pointed out by the respondents by way of raising preliminary objections that two leases were granted in favour of the petitioner for establishment of Bricks Kiln under the Conditions of 1966. The terms of those lease were expired in the year 1995 but thereafter also, the petitioner kept the land in question in his possession and using the land for the purpose of manufacturing bricks. Meaning thereby, the land is being used since 1995 by the petitioner, therefore, obviously, the petitioner has committed illegality, therefore, he has been asked to make payment for use and occupation of the land after expiry of the lease. 6 But the said amount has not been paid.
The respondent State also raised a preliminary objection that the petitioner has no right to keep the land in his possession because after 1995, there is no renewal of the lease issued in favour of the petitioner - Samiti for the purpose of brick kiln and he has no right to remain in possession and to pursue any business of brick kiln, therefore, if there is no valid right created in favour of the petitioner, then, petitioner cannot invoke interference under Article 226 of the Constitution of India. The District Collector has rightly passed the order dated 12.8.2008 in which it is specifically observed that if the petitioner will be allowed to pursue business of brick Kiln then it will cause irreparable injury to the public because it is creating pollution problems also.
The respondents are not disputing the judgment of Full Bench of this Court rendered in case of Mohd. Bux (supra) in their reply, so also, the District Collector in the impugned order himself observed that some conditions were declared invalid by Rajasthan High Court in Mohd. Bux's case (supra) but land is belonging to the State, therefore, in the event of non-renewal of license or lease, nobody can be allowed to pursue the business upon the said land for which there is no valid renewal of lease by the 7 District Collector, therefore, the order passed by the District Collector, Hanumangarh does not require any interference because it has been passed not only on the ground that lease was expired in the year 1995 and was not renewed by the District Collector but order has been passed on the basis of other circumstances including pollution problem and apprehension of accidents, therefore, the order is legal and justified. Therefore, this writ petition may be dismissed.
I have considered the rival submissions made by both the parties.
First of all, there is substance in the arguments of learned counsel for the petitioner that in case of Mohd. Bux (supra), the Full Bench of this Court passed the following order :
"31. As a up-shot of the above discussion, we answer the questions framed by the learned single Judge as follows :-
Question No. 1 :
We answer that the area for establishment of brick kilns shall be made available by the Commissioner/Collector/Colonisation and the allotment of leases shall made by the Mining Department under the Rules of 1977. R.4 (3) of the Rules of 1977 is ultra vires.8
Question No.2 :
The Conditions Nos.6, 7, 9, 10, 11 and 12 of the Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 are ultra views and they are struck down. Entry 18 of List II of Seventh Schedule does not cover the minerals.
Question No.3 :
The Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 are beyond the authority/competence of the State Government to the extent of grant of mining leases.
Question No.4 :
The law laid down in Shivchand Goyal's case (1967 Raj LW 30) is good law and the establishment of brick kiln is covered by Entry 54 of List I of the Seventh Schedule of the Constitution and not by Entry 18 of List II of the Seventh Schedule of the Constitution and the Conditions of 1966 are ultra vires beyond the ear-marking of the area for establishment of brick kilns."
The aforesaid judgment is still in existence. Further, the District Collector himself observed in the impugned order that certain conditions of the Conditions of 1966 were declared invalid but the impugned order has been passed by the District Collector for recovery on the ground that there is no extension of lease after 1995 for the business of 9 bricks kilns by the Collector, Hanumangarh and land was used by the petitioner - Samiti for the purpose of said business but in this case, the case of the petitioner is that they are holding a valid license issued by the Mining Department, which is valid upto 30.10.2008. Meaning thereby, the petitioner is having mining lease granted by the Mining Department, therefore, they are in lawful possession of the land, as such, the order which is passed by the District Collector for the recovery of the amount cannot be termed as a legal order because in the said order, it is observed by the District Collector that the petitioner is in illegal possession and utilizing the said land for the purpose of construction of bricks knowingly well that after judgment of Mohd. Bux's case (supra) Mining Department is having jurisdiction to make allotment of lease and there is no jurisdiction left with the Collector to make allotment of lease for brick kilns.
In my opinion, if it has come to the knowledge of the District Collector that the
petitioner is not using the land for the purpose for which the petitioner - Samiti has been granted lease by the Mining Department, then, the District Collector was to make inquiry from the Mining Department whether any allotment of lease for establishment of brick kiln has been granted or not, thereafter in the event of non-grant of any lease for brick kiln by the Mining 10 Department action was to be taken but in this case without ascertaining or informing the Mining Department, the District Collector has straight away passed an order for recovery. Obviously, if land is not used by the petitioner - Samiti for the purpose of establishing brick kiln as per allotment of lease by the Mining Department, then, obviously it can be said that there was breach of conditions of license or lease issued by the Mining Department for which the Mining Department is competent to take action against the petitioner - Samiti after the judgment of Mohd.
Bux's case (supra) by the Full Bench of this Court but admittedly the impugned order has been passed by the Collector, Hanumangarh for recovery of dues for use of land for the purpose of production of bricks while installing kilns on the ground that there is no renewal of license for the said purpose by the Collector after 1995. In view of Mohd. Bux's judgment (supra), petitioner is not required to take any license from the District Collector for establishment of brick kiln but for pollution problem and other problems, if any action is required to be taken against the petitioner - Samiti then the District Collector is required to inform the Mining Department for not renewing or for cancellation of lease, if any, issued in favour of the petitioner - Samiti. But on the contrary without referring the matter to the Mining Department, the District Collector himself exercised the powers without any provision of law. 11
I have perused the impugned notice issued to the petitioner - Samiti on 1.1.2003 in which it is specifically stated that there is no renewal of lease after 1995. Therefore, without any extension you are pursuing business which is in contravention of the Conditions of 1966 but as per the judgment of Mohd. Bux's case (supra), no power is left with the District Collector to issue any lease for the purpose of bricks kilns business.
In this view of the matter, the impugned order dated 12.8.2008 issued by the District Collector, Hanumangarh is in contravention of the judgment rendered by this Court in Mohd. Bux's case (supra) in which it has been specifically hold that the District Collector has no jurisdiction for allotment of lease for brick kiln and allotment of lease is required to be made by the Mining Department under the Rules of 1977 and not under the Conditions of 1966. Therefore, the impugned order passed by the District Collector is totally without jurisdiction.
Accordingly, this writ petition is allowed. The impugned order dated 12.8.2008 passed by District Collector, Hanumangarh is hereby quashed and set aside. However, the District Collector is free to inquire from the Mining Department whether any allotment of lease has been granted by the Mining 12 Department for establishment of brick kiln. Upon receiving negative report from Mining Department the District Collector, Hanumangarh will be at liberty to take action for using Government land without any valid allotment of lease by the Mining Department for establishment of brick kiln. If the petitioner - Samiti has established any brick kiln without any allotment of lease by the Mining Department or contravening any terms and conditions of lease / license, if any issued by the Mining Department, which creates pollution and health problems for the citizens of the nearby area, then, District Collector, Hanumangarh may inform the Mining Department to take appropriate action in accordance with law. No order as to costs.
(GOPAL KRISHAN VYAS), J.
arun