Dismissed

Ram Sharan Modi v. State Mines Department Ors.

Rajasthan HC19 Nov 2018CW/11001/2011

Case brief

AI extract

What is this about?

The petitioner sought renewal of a limestone mining lease, challenging the rejection of his renewal application and seeking a direction to accept it. The State and the new khatedars objected that no registered consent had been obtained for 42.35 of 83.61 hectares and that environmental clearance was lacking. The court held renewal was not sustainable and dismissed the writ petition.

What the court decided

AI extract

Ram Sharan Modi Vs State Mines Department Ors. — Mining and Natural Resources | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 11001/2011

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Ram Sharan Modi S/o Late Shri Ramjidas Modi, Aged about 48 years, Resident of Modak Station, Tehsil Ramganj Mandi, District Kota.

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----Petitioner

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Versus

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1.State of Rajasthan through Secretary, Mines and Geology Department, Government of Rajasthan, Secretariat, Jaipur.

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The Director General, Mines and Geology Department, Govt. of Rajasthan, Udaipur.

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Superintending Mining Engineer (Mu.III), Directorate of Mines & Geology, Udaipur.

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Mining Engineer, Ramganj Mandi, Kota.

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Nandesh S/o Ganesh, aged about 32 years, by caste Bheel, R/o Modak, Tehsil Ramganj Mandi, District Kota (Raj.)

¶11

Smt. Mamta W/o Sh. Nandlal, by caste Bheel, R/o Askali Tehsil Ramganj Mandi, District Kota (Raj.)

¶12

Ganesh S/o Shri Bhairulal, by caste Bheel, R/o Askali Tehsil Ramganj Mandi, District Kota (Raj.)

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Nandlal S/o Shri Ramchandra, by caste Bheel, R/o Askali Tehsil Ramganj Mandi, District Kota (Raj.)

¶14

Smt. Seema W/o Shri Bajrang Lal, by caste Bheel, R/o Askali Tehsil Ramganj Mandi, District Kota (Raj.)

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Smt. Suraj Bai W/o Shri Ganesh, by caste Bheel, R/o Askali Tehsil Ramganj Mandi, District Kota (Raj.)

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(2 of 22)

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[CW-11001/2011]

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Parmanand S/o Sh. Radheyshyam, by caste Meghwal, R/o Kutkaya, Tehsil Ramganj Mandi, District Kota (Raj.)

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Rambhagat Modi S/o Late Sh. Ramjidas Modi, aged about 57 years, by caste Mahajan, R/o Modak Station, Tehsil Ramganj Mandi, District Kota (Raj.)

¶20

----Respondents

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For Petitioner(s) : Mr. Vimal Choudhary, Mr. Gaurav Choudhary For Respondent(s) : Mr. K.K. Sharma, Sr. Counsel with Mr. Sandeep Pathak, Mr. Karanveer Singh, Mr. A.S. Mathur

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Order

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19/11/2018

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Instant writ application has been instituted by the petitioner with the prayer to quash/set aside the orders date 29^th July, 2011, 2^nd August, 2011 and 3^rd August, 2011, and seeking a further direction for the State-respondents to accept the application dated 8^th April 2010, for renewal of lease for mining of the land involved herein. The prayer clause of the writ application reads thus:

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“(i) to call for the entire record pertaining to the case of the petitioner and examine the same and

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(ii) by an appropriate writ, order or direction in the nature thereof, to quash and aside the order dated 29.7.2011, 2.8.2011 and 3.8.2011 passed by the respondents with all legal consequences in favour of the petitioner;

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(iii) to direct the respondents to accept the application of the petitioner dated 8.4.2010 for 6th renewal of the mining lease No. 25/1990 in favour of the petitioner;.

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(iv) to direct the respondents to restore possession of the mining area under mining lease No. 25/1990 in the same condition as they have taken possession immediately and also to quash the advertisement dated 9.8.2011 and all proceedings and actions taken thereunder;

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(iv) to issue any other appropriate order or direction which this Hon’ble court deems fit and proper in the facts and circumstances of the case in favour of the Humble Petitioner.

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(v) Cost of the writ Petition may kindly be awarded in favour of the humble petitoner.”

¶34

Shorn off unnecessary details, the essential skeletal material facts are: that Shri Ramji Das Modi, was granted mining lease M.L. No. 25/ 1990 and M.L. No. 45/ 1991, for limestone respectively, by the Mining Department on 28 February 1961, in villages Pipakhedi, Shathakedi and Mayla; situated in tehsil Ramganj Mandi, District Kota. The lease was renewed periodically. Later-on, the lease was transferred in the name of the petitioner on 3^rd December, 2005, and has been accordingly, registered on 9^th January, 2006. It is pleaded case of the petitioner that he applied for grant of 6^th renewal of the mining lease in question on 8^th April 2010. At the time of grant of lease in favour of father of the petitioner namely, Shri Ramji Das Modi; the consent for mining from the erstwhile Khatedars of the land, had already obtained and on the basis of that consent, renewal was accorded from time to time. It is further pleaded that the erstwhile land owners whose names were recorded as Khatedars of the land where the mining operations of the petitioner were going on; transferred the land through registered sale deeds. The new Khatedars objected before the Mining Engineer, Ramganj Mandi, Kota, that the petitioner Ram Sharan Modi, didn’t obtain the consent from the

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(4 of 22) [CW-11001/2011]

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present Khatedar(s) of the land. And in this regard, the Department concerned made queries from the petitioner, which were responded to and explained by him through explanation dated 18^th October 2010 and 10^th February 2011, wherein the Mining Engineer was informed and explained of the circumstances, specifically pointing out that the objections raised by the new khatedar(s) , is/are, absolutely false, frivolous and baseless. Moreover, the objections were raised, only with the object to blackmail and extract financial benefits from the petitioner. Thereafter, the petitioner addressed several representations to the Department stating that some miscreants were trying to ensure cancellation of the renewal process of the lease of the petitioner for mining, on the basis of the false and frivolous sale deeds wherein the new khatedars of land raised objections to the effect that fresh consent has not been obtained from them. Be that as it may, the Deputy Secretary, Department of Mines, Government of Rajasthan, rejected the renewal application dated 8^th June 2011 vide impugned order dated 29^th July 2011 and in consequence to that the Mining Engineer issued a letter dated 03^rd August 2011, also under challenge.

¶37

Mr. Vimal Chaudhary, learned counsel for the petitioner, contended that Shri Ramjidas Modi son of Shri Ramrichhpal Modi, resident of Modak Station, Kota, was granted mining lease for limestone in an area of 83.46 hectares vide order dated 19^th December 1960 under the Rajasthan Minor Mineral Concession Rules, 1959 (for short, Rules of 1959), and the lease deed, with lease M.L. No. 25/ 1990, was executed for this purpose on 11^th March 1961 for a period of five years and the same was registered

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(5 of 22)

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on 11^th April 1961. The lease was then renewed for further five years vide order dated 24^th March 1966, again for further five years vide order dated 10^th June 1971, then again for further five years vide order dated 18^th May 1976. Thereafter, for further ten years vide order dated 29^th May 1981 and 8^th March 1988. The fifth renewal was granted for ten years vide order dated 31^st July 1991. The period of the lease involved herein was extended vide order dated 04^th December 1998 from 11^th April 1991 to 10^th April 2011.

¶41

According the learned counsel, the said lease was transferred to the son of Shri Ramjidas Modi i.e. the petitioner vide order dated 7^th January 2006. The petitioner submitted an application dated 08^th April 2010, for renewal of mining lease M.L. No. 25/90. It was at this juncture, the objections were made to the process of renewal of the mining lease in favour of the petitioner on the pretext of change in khatedar tenancy of the land, alleging that no consent from them for mining was taken, although consent for mining operations was already granted by the then khatedars . Be that as it may, the Mining Engineer, Ramganjmandi, Kota, recommended to the Director Mines & Geology, Udaipur, that the grant for sixth renewal should be accorded in favour of the petitioner for a period of 20 years vide letter dated 16^th November 2010. However, the respondent no. 1, accepting the objections as to ‘consent’ of the objectors, in an absolutely illegal and arbitrary manner dismissed the application for renewal dated 8th April, 2010, vide impugned order dated 29^th July 2011.

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Learned counsel for petitioner further stated that as per the Circular dated 15^th November 1995, issued by the Government of Rajasthan, which specifically contemplated to the effect that one time written NOC/ consent from Kahtedars /owners of the private land is required; and no further consent would be essential in case of renewal where consent had already been obtained at the time of grant of the lease. Thus, the new Khatedars of the land don’t have any right or authority to object to the consents already given by the previous khatedars , as they are bound by the dealings of their predecessor i.e. the previous or original khatedars . Furthermore, the transfer of land or sale by the original khatedar is, also arbitrary. If they had already consented for mining of the surface area. In support of his stand, learned counsel has relied upon the opinion in the case of Ritu Raj Vs. State & Ors.; 2009 (1) DNJ (Raj.) 465, Giriraj Gujar Vs. State of Rajasthan & Ors.: 2008 (3) CDR 1663 (Raj.), Aparn Gramin Vikas Sanstha Samiti Society Vs. State of M. P. AIR 2013 M.P. 72, Rajendra Prasad Vs. Ashok Kumar & Ors.: SB Civil Second Appeal No. 162/2010 passed by the Rajasthan High Court decided on 5^th February, 2015 and Raja Veligoti Venkata S.V.R.G Vs. UOI.: AIR 2004 Andhra Pradesh 179.

¶45

Counsel for the petitioner asserted that extension of lease period from 20 years to 30 years was in force from 28^th January 2011; hence, the benefit of extension of mining lease, in response to his application for renewal, could not have been denied to the petitioner. That apart, the State Government itself in the past, extended the lease period of ML No. 25/90 from 10 to 20 years upto 10^th April 2011 under Rule 16 (2) of RMMCR, 1986, vide

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(7 of 22) [CW-11001/2011]

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order dated 04^th December 1998 and further petitioner’s other lease ML No. 45/91, wherein too the same respondents no. 5 to 12, submitted objections regarding consent/NOC, while 3^rd renewal of the lease was pending; the lease was extended by 30 years vide order dated 27^th July 2012.

¶48

In response to notice on writ application the respondents have filed their counter affidavits so also written submissions. 8. Mr. Anurag Sharma, Additional Advocate General, representing State-respondent number 1 to 4, reiterating the stand in the counter affidavit asserted that Shri Ramjidas Modi son of Shri Ramrichhpal Modi, resident of Modak Station, was granted mining lease M.L. No. 45/ 1991 for the limestone by the Mining Engineer, Kota, in an area of 5.43 hectares vide order dated 03^rd January 1977 under the Rules of 1959, and the lease deed, with lease M.L. No. 45/ 1991, was registered for this purpose on 17^th January 1977, for a period of five years. The lease was renewed for the first time for further ten years vide order dated 11^th October 1982, which was registered on 21^st December 1982, while the second renewal was made vide order dated 30h June 1991, by the Superintending Mining Engineer, Kota, for a period of 20 years, which was registered on 05^th January 1993. The said lease was transferred to the son of Shri Ramjidas Modi i.e. the petitioner. However, on 21^st March 2008, the petitioner surrendered 0.8263 hectares of land out of 5.43 hectares of the leased land.

¶49

It is further pointed out that M.L. No. 25/ 1990 was granted in favour of Shri Ramjidas Modi vide order dated 19^th December 1960 for mining of limestone in an area of 83.46 hectares under the Rules of 1959 and the lease deed was executed for this

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(8 of 22) [CW-11001/2011]

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purpose on 11^th March 1961 for a period of five years and the same was registered on 11^th April 1961. The lease was then renewed for further five years vide order dated 24^th March 1966,and again for further five years vide order dated 10^th June 1971; Thereafter, renewal was made for further five years vide order dated 18^th May 1976, and for ten years vide order dated 29^th May 1981 and order dated 8^th March 1988. The fifth renewal was granted for ten years vide order dated 31^st July 1991. The period of the said lease was again extended vide order dated 04^th December 1998 from 11^th April 1991 to 10^th April 2011. The said lease was transferred to the son of Shri Ramjidas Modi, i.e. the petitioner, vide order dated 7^th January 2006. The petitioner submitted the application dated 08^th April 2010 for renewal of mining lease M.L. No. 25/90.

¶52

The authorities after due inquiry called upon the petitioner to respond to certain queries which were replied by the petitioner vide response dated 10^th February 2011. However, since the right, title and interest of the land was still in the name of original or previous khatedars and the petitioner also failed to submit the No Objection Certificate (NOC) from the Government of India regarding environment clearance; hence, the application for renewal could not be considered and the same rightly was rejected vide order dated 2^nd August 2011 and possession of the mines was taken over by the government. It is further pointed out that on the basis of a joint survey report dated 04^th November 2010 and report of the patwari dated 03^rd December 2010, containing details of the total area of 83.61 hectares falling under

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(9 of 22)

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the mining lease of the petitioner, drawn in a tabular form,

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indicates the relevant details thus:

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		Pipakhedi (Area in Hectare)	Satalkhedi (Area in Hectare)	Mayla (Area in Hectare)	Area in Hectare)
1.	Siwaichak	2.2	0.55	1.14	3.89
2(a)	Khatedari land of applicant	-	0.06	-	0.06
2(b)	Khatedari land entered in the name of previous lease holder namely Shri Ramji Das Modi	5.26	5.00	-	10.26
3.	Khatedari land of other persons regarding which the previous lease holder had obtained consent/tehrir, but mining operations were not started	2.39	-	5.98	8.37
	Khatedari land of other persons regarding which the previous lease holder had obtained consent/tehrir from the khatedars and mining operations have begin (out of which 12 hectares land have been purchased by other persons from the khatedars and civil suits filed by them are pending in various courts.	1.58	11.73	4.13	17.44
	Khatedari land of other persons regarding which no consent has been obtained and mining operations have not begin.	0.81	-	0.43	1.24
	Khatedari land of other persons regarding which no regarding consent of khatedars has been submitted from the date of sanctioning of lease to disposal of sixth renewal application and mining operations have begin.	19.99	22.36	-	42.35
	TOTAL	32.23	39.7	11.68	83.61

¶58

Counsel for the State-Respondents also stated that the petitioner failed to submit the said application for renewal of mining along with the required environmental clearance, and therefore, the state-respondents had to reject the application seeking renewal of mining lease.

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(10 of 22) [CW-11001/2011]

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Mr. Kamalakar Sharma, learned Senior Counsel for the private respondent no. 5 to 12, emphatically contended that the sole basis for institution of the instant writ petition is, that the petitioner’s father had obtained consent for conducting mining operations in the lease area from the erstwhile khatedars of the land; however, the statement and the plea is, wholly misconceived, erroneous and contrary to the record in the face of the fact that the petitioner doesn’t hold a valid registered consent deed for the lease area for which renewal was sought. It is further averred that out of a total 83 hectares of the lease land, the petitioner has not annexed any such registered consent(s) for 42 hectares area of the lease land. The details of respondents, are, as under:-

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Respondent No. 5–Nandesh 15 Bighas in Khasra No. 287, 14 Bighas 4 Biswas in Khasra No. 287/1, 3 Bighas 10 Biswas in Khasra No. 290 and 15 Bighas 1 Biswa in Khasra No. 283/2. The land was purchased by way of three registered sale deeds dated 30th April 2009, 30th April 2009 and 25th May 2009.

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Respondent No. 6–Smt. Mamta 20 Bighas 6 Biswas in Khasra No. 310/2. The land was purchased by way of two registered sale deeds dated 25th May, 2009 and 29th May, 2009.

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Respondent No. 7-Ganesh 1 bigha 5 biswas in Khasara No. 284 and 14 biswas in Khasra No. 285 and 2 bigha 17 biswas in khasra No. 307/2 and 4 bigha 2 biswas in Khasara No. 311/346. The land was purchased by way of two registered sale deeds dated 25th May, 2009 and 29th May, 2009.

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Respondent No. 8-Nandlal 20 bigha 4 biswas in Khasra No. 283. The land was purchased by way of two registered sale deeds dated 25th May, 2009 and 29th May, 2009.

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Respondent No. 9-Smt. Seema 21 bigha 17 biswas in Khasra No. 308. The land was purchased by way of two registered sale deeds dated 25th May, 2009 and 29th May, 2009.

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Respondent No. 10-Smt. Suraj Bai 20 bigha 5 biswa in Khasra No. 310/1, 16 bigha in Khasra No. 412. The land was purchased by way of two registered sale deeds dated 1st June, 2009 and 2nd June, 2009.

¶69

Respondent No. 11-Parmanand 2 bigha 11 biswas in Khasra No. 2, 5 bigha 7 biswas in Khasra No. 4, 1 bigha 5 biswas in Khasra No. 6. The land was purchased by way of two registered sale deeds dated 12th May, 2009 and 12th May, 2009.

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Respondent No. 12- Rambhagat Modi 3 bigha 5 biswas in Khasra No. 5, 7 biswas 16 biswas in Khasra No. 44, 25 bigha 10 biswas in Khasra No. 472, 11 bigha 16 biswas in Khasra No. 470, 16 bigha 15 biswas (½ portion of the petitioner) in Khasra No. 469 and 2 bigha 4 biswas in Khasra No. 241/1. The land was purchased by way of registered sale deed dated 30th April, 2009.

¶71

Learned counsel for the private respondents vociferously argued that the petitioner never carried out any mining activity on the land in question and even the possession was with the previous khatedars who were carrying on agricultural activities on the land invalued herein.

¶72

It is further pointed out that a glance of the consent deeds obtained by the father of the petitioner from the erstwhile khatedars , would make it apparent and unambiguous that the said deeds are in blatant violation of the provisions of Section 42 of the Tenancy Act, 1955, and are otherwise barred by Section 42. Further, any consent cannot be for an indefinite period, it must

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have an essential time frame, even otherwise, the consent deed cannot be treated to be operative once the mining lease expired.

¶76

Moreover, the petitioner has placed reliance on the circular dated 15^th November 1995, issued by the State Government; and that circular was already superseded by another circular dated 30^th September 2010. Thus, all the averments made and plea raised by the petitioner are inconceivable. That apart, the circular dated 30^th September 2010, makes it apparently clear that for renewal of mining lease, it is mandatory to obtain valid registered consent deeds from the concerned khatedars, in case of mining lease to be granted or renewed in favour of a person.

¶77

Counsel representing Respondent no. 13 and 14, stated that he supports the case of the petitioner to the extent of his grievance as to non-renewal of the mining lease by the Staterespondents reserving their rights for transfer of the mining lease in their favour.

¶78

Heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 18. Considering the entire factual matrix and pleadings of the parties in the writ application in totality, this court can safely conclude that in fact the crux of the matter and the only issue, in dispute, in substance is:

¶79

Whether the consent deeds already obtained by the father of the petitioner should suffice or new consents were required due to change in khatedar tenancy?

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Indisputably, no written consent from the Khatedars for an area of 42.35 hectares out of 83.61 hectares was filed while

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seeking renewal of lease. It is also not in dispute that the provisions of Rule 16 of the Rajasthan Minor Mineral Concession Rules, 1986 (for short, “Rules of 1986”), are with reference to “period of lease” wherein by amendment dated 28^th January, 2011, the maximum period was provided for 30 years. Further, the provision is applicable to only existing mining leases, at the time of commencement of these Rules. Renewal of mining lease is to be dealt with in terms of mandate as contemplated under Rule 17 of the Rules of 1986, wherein the amendment “period not existing 30 years” was made by way of publication in the Rajasthan Gazette dated 25^th May, 2012, while the case for renewal of mining lease of the petitioner was terminated on 29^th July, 2011. Hence, the claim cannot be sustained.

¶83

Undeniably, notification dated 14^th September, 2006, in no uncertain terms contemplated requirement of prior approval of environmental clearance for mining activities even with reference to area less than 5 hectares and no environment clearance was submitted by the petitioner while seeking renewal of the mining lease involved herein.

¶84

In the case of Deepak Kumar etc. v. State of Haryana & Ors. etc.: (2012) 4 SCC 629, the Apex Court of the land has emphasized that leases of minor mineral, including their renewal for an area of less than 5 hectares, be granted by States/Union Territories only after getting environmental clearance from MoEF.

¶85

Rule 18(29) of the Rules of 1986, further provides that the lessee/lessees shall abstain from entering upon the surface of any occupied government land or of any private land comprised within the lease area without previously obtaining the consent of the

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(14 of 22)

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occupant in writing. Thus, viewed in the backdrop of the law declared in the case of Pallava Granites Industries India (P) Ltd. Vs. Government of Andhra Pradesh & Ors.: (1997) 4 SCC 559 , the total lease area of 83.61 hectares comprised of 42.35 hectares for which no written consent from the Khatedars was filed at all.

¶89

The adjudication with reference to civil suit instituted and decreed; it is pointed out from the materials available on record that the same has been stayed on appeal vide stay order dated 22^nd January, 2016 (Annexure-R/4/3).

¶90

In the case of State of Tamil Nadu v. Hind Stone & Ors.: (1981) 2 SCC 205, the Apex Court of the land observed that renewal of a lease is, in essence is an application for the grant of a lease for a fresh period. Further, renewal of lease is not a vested right and the grant cannot be insisted upon in a particular way applying particular provision. At this stage, it will be profitable to take note of text of para 12 and 13, which reads thus:

¶91

“12. The next question for consideration is whether Rule 8- C is attracted when applications for renewal of leases are dealt with. The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore Rule 8-C should be confined, in its application, to grant of leases in the first instance. We are unable to see the force of the submission. Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case. These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. If as a result of experience gained after watching the performance of private entrepreneurs in the mining of

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minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook. In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook. To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility. It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period. We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also,

¶95

Another submission of the learned Counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O. Ms. No, 1312 (2-12 1977) should be dealt with as if Rule 8C had not come into force. It was also contended that even applications for grant of leases made long before the date of G.O. Ms. No. 1312 should be dealt with as if Rule 8C had not come into force.

¶96

The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application.

¶97

No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.

¶98

We are, therefore, unable to accept the submission of the learned Counsel that applications for the grant or renewal of leases made long prior to the date of G.O. Ms. No. 1312 should be dealt with as if Rule 8C did not exist.”

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(16 of 22) [CW-11001/2011]

¶100

Referring to the Rajasthan Mineral Policy, 2011, it is pointed out that under Clause 10.7: PERIOD OF MINING LEASE as contemplated under Rule 16(1) of the Rules of 1986, contemplating grant for 20 years and minimum period is not less than 10 years; was required to be suitably amended to provide mining lease for 30 years and minimum period shall not be less than 20 years. The policy further indicated that Rule 16(2) of Rules of 1986, is also required to be suitably amended to extend the period of existing mining leases (not renewed) from 20 years to 30 years. Thus, the arguments put forth that the case of the petitioner was not one of existing mining leases, has substance. 26. For there was no condition restraining sale of the khatedar tenancy after having consented for mining; the previous or the original khatedars had absolute right to sell their tenancy. Since the new khaterdars purchased the said land in 2009, and the petitioner filed application in the year 2011; he, therefore, was required to have obtained the registered consent deeds from the new khatedars in order to get the lease renewed from the Staterespondents. In the case of Pallava Granities Industrial India Ltd Vs. Government of AP: (1997) 4 SCC 559, on somewhat similar issue, the Apex Court of the land held thus:

¶101

“3. We find no force in the contention. The right to excavate the mines from a land of private owner is based on the agreement; unless the lessor gives his consent, no lessee has a right to enter upon his land and carry on mining operations. The right to grant mining lease to excavate the mines beneath the surface is subject to the agreement of the land owners. Therefore, with a view to ensure that there will not be any obstruction in the working of the mining lease and also for the peaceful operation of the excavation of the mines, insistence on the consent of the landlord is

¶102

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necessary. Therefore, we do not find any illegality in the view taken by the High Court warranting interference.”

¶105

In the case of Purkha Ram Vs. State of Raj. & Ors. : DBCWP No.12674/2011, made by a Division Bench of this Court, at Principal Seat, Jodhpur, decided on 19^th December, 2011, held thus:

¶106

“After hearing learned counsel for the petitioner, we are of the opinion that no illegality can be found in the condition contained in clause 3 of the circular. A lease in which no mining has taken place till the renewal becomes due after initial grant, stands on different footing than the leased area which has been mined in khatedari land till the -2- renewal becomes due. Consent is necessary to be obtained, only stage of submitting consent has been deferred to start of mining operation. It has been mentioned in the condition contained in clause 3 that renewal application can be sanctioned on the condition that registered consent of Khatedar will be obtained and submitted in concerned office before start of mining operation in khatedari land. When before mining operation is started in khatedari land, the registered consent of khatedar has to be obtained and submitted in department and only thereafter, mining can take place, is a reasonable provision which can not be termed to be arbitrary. In Clause 4, differentiation has been made that in case where lease has been mined in khatedari land, as mining operation might have affected the land leased out, hence consent before renewal is required to be obtained. Essence is that mining cannot take place in both cases until consent is granted by khatedar. Consent has to be obtained before renewal. The purpose of obtaining consent before mining is started is served in cases when no mining has been undertaken in leased area and only renewal is applied. Consent has to be obtained in both cases.

¶107

In our opinion, in case the condition contained in clause 3 is to prevail, no anomalous situation is going to be created. In our opinion, condition contained in Clause 3 cannot be said to be illegal or arbitrary in any manner. Hence, we are not inclined to interfere in the aforesaid condition.”

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¶110

In the case of Shambhu Singh Vs. State of Raj. & Anr.: DBCWP No.3030/2010, decided on 30^th March, 2012, a Division Bench of this Court on a detail examination of somewhat identical controversy, held thus:

¶111

“It was also submitted by Shri Kamlakar Sharma, learned senior counsel appearing on behalf of the petitioner that it would be impracticable that NOC/consent to be obtained before grant of lease as sometime grant of lease may not be possible after exclusion of the area of Khatedar who may be holding small piece of land in the area to be leased. The submission cannot be accepted as in any case before entry on the surface or before undertaking any kind of 12. mining, Rule 18(29) of the Rules of 1986 also provides to obtain the consent in writing. The same spirit has been engrafted in the Policy of 2002 with slight departure that such consent has to be obtained in the cases of grant of private land held on khatedari rights before grant of lease. In our opinion, when essence is that no entry or mining operation is permissible and mining cannot be done without consent. It is advisable to obtain consent of a Khatedar in the cases of grant of lease before hand as that would prevent several complications which may arise after lease is granted as entry/mining operations in an area are not permissible without such consent and as such, lease itself would become futile. Thus, while making provisions of obtaining consent before the lease is granted in Clause-12 of Policy of 2002, we find that no arbitrariness has been committed by the State Government.

¶112

The Apex Court in Pallava Granites Industries India (P) Ltd. Vs. Government of Andhra Pradesh & Ors., AIR 1997 SC 2098 : 1997 (4) SCC 559 has laid down that right to excavate the mines from the land of private owner is based on the agreement; unless the lessor gives his consent, no lessee has a right to enter upon his land and carry on mining operations. The right to grant mining lease to excavate the mines beneath the surface is subject to the agreement of the land owners. Therefore insistence on the consent of the landlord is necessary. Similar is the provision in the present case made in Clause-12 of the Marble Policy, 2002. The decision of

¶113

(19 of 22)

¶114

[CW-11001/2011]

¶115

the Andhra Pradesh High Court in Pallav Granites Industries India (P) Ltd. Vs. Government of Andhra Pradesh & Ors., 1997 AIHC 319 was affirmed by Their Lordships of the Supreme Court in the aforesaid case.

¶116

In Raja Veligoti Venkata Sesha Varada Raja Gopalkrishna Yachendra Vs. Union of India & Ors., AIR 2004 AP 179 , consent was contemplated under Rule 22(3)(i)(h) of the Mineral Concession Rules, 1960. Thus, it was held that when consent was contemplated at the time of grant of lease, no further consent is required in case of renewal. The consent at the time of renewal was held not necessary. The decision laid down that consent of the Landlord is necessary as per aforesaid rule.

¶117

The Division Bench of this court in Purkha Ram Vs. State of Rajasthan & Ors., DB Civil Writ Petition No.12674/11 decided on 19.12.2011 has considered the condition mentioned in the circular dated 30.9.2010 where consent of Khatedar was made imperative before renewal in clause 4 of the Circular. Condition mentioned in Clause-3 of the Circular was questioned which provided that consent of the Khatedar by lease holder before any mining operation is started in the Khatedari land is necessary. The aforesaid provision has been held not to be suffering with any illegality or arbitrariness.

¶118

Shri Kamlakar Sharma learned senior counsel. appearing on behalf of the petitioner has relied upon the decision of the Apex Court in State of Tamil Nadu Vs. M.P.P. Kavery Chetty, AIR 1995 SC 858 in which provisions contained in Rule-19A of the T.N. Minor Mineral Concession Rules, 1959 came up for consideration. Rule19A did not provide for consent of the owner of the land to be a condition precedent. Section 24A of the Act of 1957 was noted by Their Lordships. There is obligation to compensate the land owner for any loss or damage that his operations may cause. Consent of the occupier is required only when the holder of the lease desires entry into any building or enclosed court or garden. Rule-19A of T.N. Minor Mineral Concession Rules, 1959 came up for consideration before the Apex Court which provision appears to be different then the provisions of Clause12 of the Marble Policy, 2002 in question framed under Rule-65A of the Rules of 1986.

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(20 of 22)

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[CW-11001/2011]

¶121

Reliance has also been placed on the decision of the Full Bench of this court in Mohd. Bux Vs. State of Rajasthan & Ors., 1993(1) RLR 11 in which Rule4(3) of the Rajasthan Minor Mineral Concession Rules, 1977 came up for consideration where it required no objection certificate from Colonisation Commissioner for granting mining lease in colony under the Rajasthan Colonisation Act, 1954 and the conditions framed in the year 1966 was held to be invalid and ultra vires. The Full Bench of this court dealt with altogether a different provision and in different factual matrix. The condition of obtaining consent of colonisation commissioner was under different Act. Thus, decision on aforesaid 15. condition does not carry the case of the petitioner to the logical end canvassed in the petition.

¶122

Reliance has also been placed on the decision of the High Court of Allahabad in Dinesh Pratap Dwivedi Vs. State of Uttar Pradesh & Ors., 1995 ALL.L.J. 872, wherein question came up for consideration that under U.P. Minor Minerals (Concession) Rules, 1963, consent of land owner was not necessary under statutory Rules. Government issued circular stating that consent of land owner should be considered for giving preferential treatment when two applications received for identical land. It was held that circular cannot override statutory Rules. The aforesaid decision has no application in the facts of the instant case in view of clear provisions made in the Rules of 1986 as well as in the Marble Policy, 2002 which has been framed under Rule 65A of the Rules of 1986. In our opinion also land owner cannot give consent to particular individual, in case he gives consent area has to be treated as available for mining to applicant/applicants; entitlement to be decided by competent authority under Rules or Acts as the case may be.

¶123

Reliance has also been placed by Shri Kamlakar Sharma, learned senior counsel, on the decision of the Single Bench in Kailash Chand Mangla Vs. State of Rajasthan & Anr., Civil Misc. Appeal No.216/97 decided on 1.7.1997 in which it has laid down while deciding appeal arising out of interim injunction order that consent is necessary under Rule18(29) of the Rules of 1986 only when a lessee enters. upon the land for which mining lease has been granted. However, in our opinion, in view of specific provision made in Clause-12 of the Marble Policy, 2002, which has been framed under Rule-65A of

¶124

(21 of 22)

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[CW-11001/2011]

¶126

the Rules of 1986, we find that no assistance can be derived from the aforesaid decision of the Single Bench.

¶127

The Division Bench of this court in State of Rajasthan & Ors. Vs. National Limestone Co. (P) Ltd., 2008(5) WLC (Raj.) 681 has upheld the validity of the circular dated 15.11.1995 laying down that every application for grant of renewal of a mining lease shall be accompanied by a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained the consent of the owner for starting mining operations. Similar is the provision made in Clause-12 of the Marble Policy, 2002.

¶128

Shri Kamlakar Sharma, learned senior counsel has also submitted that State Government cannot act in violation of statutory rules. For this, reliance has been placed on Punjab Water Supply and Sewerage Board Vs. Hari Har Yadav & Ors., AIR 2007 SC 1082, Union of India & Anr. Vs. Central Electrical and Mechanical Engineering Service Group A & Ors., AIR 2008 SC 3, M/s. Bharat Coking Coal Ltd. Vs. State of Bihar & Ors., JT 1990(3) SC 533, M/s. T.R. Chemicals Ltd. & Anr. Vs. State of Orissa & Anr., AIR 2008 ORISSA 126. He contended that the policy cannot override the statutory provisions. In our considered opinion, the Marble Policy, 2002 cannot be said to be in violation of. the Rules of 1986. Rules of 1986 provide for consent before entry is made or mining is undertaken, stage of obtaining consent is not specifically dealt with even if it is taken that same is to be obtained after grant of lease as stage of consent is a procedural aspect and for this, any method or procedure which is different can be prescribed in Policy by State Government as provided under Rule-65A of the Rules of 1986. The Clause-12 of Policy is in terms of Rules of 1986. Thus, there is no statutory violation made in Policy, 2002 by making procedural provision to obtaining the consent imperative before lease is granted. There is no violation of provisions of the Act of 1956 or the Rules of 1986. As such, ratio of the aforesaid decisions is not attracted in the instant case.”

¶129

True it is that the amendment dated 25^th May 2012, contemplated in no uncertain terms that no mining lease, without registered consent of the khatedars , is permissible. It is also not

¶130

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[CW-11001/2011]

¶132

disputed that amendment dated 19^th June 2012, provided for approval from the Ministry of Environment, as a condition precedent, for renewal of mining lease.

¶133

Applying the principle deducible from the opinions referred to and relied upon by the learned counsel for the parties to the factual matrix of the case at hand, it is evident that the petitioner’s application for renewal of lease was declined on 29^th July, 2011, hence, the claim staked relying upon the text of Rule 17 of the Rules of 1986, wherein amendment was carried out 25^th May, 2012; the plea cannot be sustained. The total mining lease of 83.61 hectares consisted of 42.35 hectares for which no written consent was filed at all; the claim of the petitioner for relief, therefore, cannot be granted.

¶134

For the reasons and discussions aforesaid and in view of singular factual matrix of the case at hand; the writ application fails and is hereby dismissed.

¶135

However, there shall be no order as to costs.

¶136

(VEERENDR SINGH SIRADHANA),J

¶137

Pcg/

Ram Sharan Modi v. State Mines Department Ors.

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Ram Sharan Modi v. State Mines Department Ors.

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