Dismissed

Nathu Lal Meena v. State Mines Department Ors.

Rajasthan HC20 Nov 2018SAW/2044/2017

Case brief

AI extract

What is this about?

Division Bench dismissed an appeal against the dismissal of a writ petition and review petitions regarding a granite mining lease application. The court held that delineation of the mining plot is a mandatory condition precedent under the Granite Policy, 2002, and a prior sanction letter could not be saved by subsequent legal provisions due to the violation of this condition.

What did the court decide?

The appeal filed by the appellant was dismissed.

Nathu Lal Meena Vs State Mines Department… — Contract and Commercial Disputes | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 2044/2017

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S.B. Civil Review Petition No.44/2016

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S.B. Civil Writ Petition No.10599/2011

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Nathu Lal Meena S/o Shri Har Sahai Meena, Aged about 68 years, Resident Of Village Dholi Ka Bas, Tehsil Sikrai, District Dausa (Raj.)

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----Appellant

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Versus

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The State Of Rajasthan through Principal Secretary, Mines Department, Secretariat, Jaipur.

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The Director, Department Of Mines And Geology, Udaipur, Rajasthan.

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The Deputy Secretary, Mines Department Group-2, Secretariat, Jaipur.

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The Superintending Mining Engineer, Department Of Mines And Geology Circle Jaipur, Khanij Bhawan, Udyog Bhawan Campus, Tilak Marg, C-Scheme, Jaipur.

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The Mining Engineer, Mines And Geology Department, Udyog Bhawan Campus, Tilak Marg, C-Scheme, Jaipur.

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----Respondents

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For Appellant(s) : Shri Vimal Choudhary with Shri Yogesh Tailor For Respondent(s) : Shri Nathu Singh Chouhan, Dy. Govt. Counsel for the respondent-State

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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REPORTABLE Judgment

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20/11/2018

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(PER HON’BLE MOHAMMAD RAFIQ, J.)

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This appeal is directed against the judgement of the learned Single Judge dated 7.3.2014, whereby the writ petition filed by

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(2 of 14)

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the appellant was dismissed and also the order dated 9.11.2017 by which the petition seeking review of that judgement was also dismissed.

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Facts of the case are that the appellant submitted an application for grant of mining lease for minor mineral i.e. Granite in khasra no.634 measuring 3 hectare situated at Village Sabadawali, Tehsil Baswa, District Dausa on 20.02.2006 under Rule 5 of the Rajasthan Minor Mineral Concession Rules, 1986. The Mining Engineer thereafter issued a letter dated 17.04.2006 to the appellant to deposit the demarcation fee and also fixed 25.04.2006 as the date for demarcation of the area in the presence of the Halka Patwari. Appellant deposited demarcation fee of Rs.2600 on 22.4.2006.

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Appellant has set up the case in the writ petition that the pre-demarcation and khasra verification report was prepared on 16.6.2006, wherein it was mentioned that the area neither falls in the forest nor can be deemed as forest by the dictionary meaning as specified by the Supreme Court in order dated 12.12.1996. The Mining Engineer sent letter dated 4.7.2006 along with relevant documents to the Deputy Conservator of Forest, Dausa seeking verification of the forest area. The District Collector, Dausa issued No Objection Certificate vide letter dated 2.12.2006 to respondent no.5. Gram Panchayat, Jhajhirampura also issued No Objection Certificate dated 13.9.2006 in favour of the appellant. In compliance of the letter dated 4.7.2006, the Deputy Conservator of Forest wrote a letter to the Mining Engineer dated 15.11.2006 in which it was mentioned that the applied land for allotting the mining lease did not fall in the forest area. The distance of the forest area is 300 meters from the applied area. Appellant was

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then as per Rule 12 and 15 of Granite Conservation and Development Rules of 1999 required to submit the mining plan within three months as per the letter of the respondents dated 27.3.2008. The Mining Engineer sent a letter to the Assistant Mining Engineer on 15.4.2008 for making joint inspection of the site. The joint inspection report was submitted vide letter dated 6.5.2008. The appellant then submitted representation to the concerned authorities on 3.9.2009, but the mining lease was not sanctioned. A letter dated 21.12.2009 was sent by the Superintending Mining Engineer to the Assistant Secretary informing that compliance of the judgement of this Court dated 28.5.2008 was required to be made prior to issuance of mining lease in favour of the appellant. The appellant was served a notice dated 16.2.2010 to submit his defence. Appellant then submitted representation to the respondents on 24.2.2010 and thereafter served a legal notice on 9.3.2010, even then the Mining Engineer by order dated 19.3.2010 rejected the application of the appellant. Aggrieved by rejection of application, the appellant filed revision petition before the Deputy Secretary, Mines and Geology Department, Government of Rajasthan, who by order dated 17.8.2010 dismissed the revision petition. The writ petition filed by the appellant was dismissed by learned Single Judge of this Court vide judgement dated 7.3.2014 endorsing the view of the respondents that in the light of judgement of this Court in Sanjay Sukhadiya vs. State of Rajasthan & Ors.-RLW2008 (4) Raj.3138, mining lease could not be granted for granite without proper delineation. The learned Single Judge further held that the mining lease applied by the petitioner fell in the pasture land. Learned Single Judge also held that as per the Granite Policy of 2002,

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mining can be allotted only after reservation of the area which was not done in the present case. Appellant then filed review petition on the premise that the provisions with regard to grant of reservation to the extent of 20% in favour of SC/ST in the Granite Policy of 2002 was overlooked in the judgement of the Single Judge and, therefore, the judgement be reviewed. The learned Single Judge dismissed the review petition observing that Single Bench of this Court in Sanjay Sukhadiya, supra has passed the restraint order for allotting the mining lease only after marking and delineation of the area in consonance with the Granite Policy, 2002. Since the delineation and notification of the mining area in question was not made, the writ petition was rightly dismissed.

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Appellant then again filed appeal before the Division Bench bearing D.B. Civil Special Appeal (W) No.360/2015 against the aforesaid judgement dated 7.3.2014 dismissing the writ petition and the order dated 16.2.2015 dismissing the review petition. In the appeal, the appellant for the first time referred to a scheme dated 13.1.2012, purported to have been issued by the Department of Mines in compliance of the judgement of division bench of this Court dated 11.01.2011 in Sanjay Sukhadiya (leading case being D.B. Special Appeal (Writ) No.623/09, Rameshwar Nawal vs. State of Rajasthan & Ors.) and 16 connected matters. The division bench by judgement dated 18.2.2016 while disposing of the appeal observed that since the Circular was neither placed before the learned Single Judge when the writ petition came to be decided, nor in the review petition and further since the effect of the Circular dated 13.1.2012 has not been examined by the learned Single Judge, it was not appropriate for the division bench to take note of the said Circular

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as it was not before the learned Single Judge for consideration and appreciation, granted liberty to the appellant for filing further review petition. The second review petition filed by the appellant has again been dismissed by the learned Single Judge vide order dated 9.11.2017 by observing that the mining lease could be executed in favour of the appellant, judgement of this Court in Sanjay Sukhadiya, supra was delivered, which categorically held that without earmarking and delineation of the area, the allotment of mining lease cannot be made under the Granite Policy of 2002. On the reliance being placed of the division bench judgement in Rameshwar Nawal, supra against the judgement of Sanjay Sukhadiya, supra, with regard to reservation in favour of SC/ST for grant of mining lease, the learned Single Judge held that issue before the division bench was not whether the mining lease can be granted without delineation of the area. The review petition was therefore again dismissed.

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Shri Vimal Choudhary, learned counsel for the appellant has heavily relied on the division bench judgement of this Court dated 11.01.2011 at Principal Seat, Jodhpur in Sanjay Sukhadiya, supra. He argued that pursuant to the aforesaid division bench judgement, a circular was issued by the Government dated 13.01.2012 in respect of the pending applications under the Granite Policy of 2002, which required that one mining lease each should be granted in favour of the members of the SC/ST and thereafter remaining lease areas be allotted as per the new amendment policy of 2011 to the extent of 50% by reservation and remaining 50% by auction, after delineation of the mining plots. Learned counsel submitted that a right accrued in favour of the appellant as the Superintending Engineer by order dated

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27.3.2008 (Annexure-14) has communicated to the appellant, who is a member of ST that mining lease of granite in an area of 3.00 hectare near Village Sabadawali, Tehsil Baswa, District Dausa has been sanctioned to him and required him to submit the mining plan as per Rule 12 and 15 of the Rules of 1999 within three months. The respondents however abruptly rejected the mining application of the appellant on 19.3.2010. In this rejection order, the respondents relied on the Single Bench judgement of this Court in Sanjay Sukhadiya, supra and held that the allotment of the mining lease could have been made only after delineation of the mining plots.

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Learned counsel submitted that the appellant has challenged not only this order, but also the order of the State Government dismissing the revision petition filed by him thereagainst and since both the orders are under challenge, this Court ought to by setting aside them, treat his application pending and accordingly deal his application in terms of the direction of the division bench of this Court and the Circular dated 13.1.2012. The contention of the State Government that appellant’s application was not pending as on the date of aforesaid judgment, therefore, he was not entitled to allotment of mining lease as per the Circular dated 13.01.2012 is therefore wholly untenable. The Supreme Court in V. Karnal Durai vs. District Collector, Tuticorin & Anr.-(1999) 1 SCC 475 has observed that pendency of the appeal, being continuance of the proceedings, application of the applicant would be deemed to be pending on the date of the amendment.

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Shri Vimal Choudhary learned counsel has cited the judgement of the Supreme Court in Beg Raj Singh vs. State of U.P. & Ors.-(2003) 1 SCC 726 to argue that the rights of the party

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crystalise on the date of commencement of litigation and right to relief should be decided accordingly. He argued that even if the Granite Policy of 2002 has been withdrawn by notification dated 12.7.2012 and the State Government promulgated the Rajasthan Minor Mineral Concessions Rules, 2017. Rule 3 of the Rules of 2017 with regard to Repeal and Savings has provided that anything done or any action taken under the provisions of the Rules of 1986 so repealed shall be deemed to have been done or taken under the provisions of these Rules. Thus sanction letter issued on the application of the appellant would be liable to be seen and considered as such.

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Learned counsel also relied on the division bench order of this Court delivered at Principal Seat at Jodhpur in D.B. Civil Misc. Application No.34/2014 in D.B. Civil Contempt Petition No.84/2012, Rameshwar Naval vs. Dr. Govind Sharma & Ors. Dated 27.11.2014 in which case the petitioner was permitted to fulfill all the terms and conditions of LOI, which was issued in his favour, much after issuance of the aforesaid Circular dated 13.1.2012 and the contract agreement was ordered to be executed in his favour. He also argued that learned Single Judge while dismissing the subsequent review petition filed by the appellant has not at all considered the effect of Circular dated 13.1.2012 issued by the State Government in compliance of the judgement of division bench of this Court in Rameshwar Nawal, supra. Learned counsel therefore submits that similar treatment be accorded to the appellant.

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Shri N.S. Chouhan, learned Deputy Government Counsel has opposed the appeal and argued that the learned Single Judge was perfectly justified in dismissing the writ petition as also the two

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review petitions filed by the appellant as in the case of the appellant, the land area in which the mining lease was sought to be allotted in his favour, was a pasture land and in view of the judgement of t he Supreme Court Jagpal Singh & Ors. vs. State of Punjab-(2011) 11 SCC 396 , the pasture land could not have been allotted for any other purpose except for grazing of the cattle and no mining lease could have been issued thereupon. In any case, decision of the respondents to cancel the application of the appellant for grant of mining lease was based strictly on the direction issued by this Court in the judgement of Sanjay Sukhadiya, supra. Learned counsel has referred to the judgement of division bench of this Court in appeal against that judgment and argued that division bench has not in any manner diluted the judgment of Single Bench. It has rather reiterated the same. The division bench has nowhere held that the mining lease would be granted even under the Granite Policy of 2002 by way of reservation to the members of the SC/ST or otherwise even when the area of the mining has not be earmarked and mining plots have not been delineated. Learned counsel therefore prayed that the appeal be dismissed.

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We have given our anxious consideration to rival submissions and perused the material on record.

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No doubt, the Superintending Engineering by its communication dated 27.3.2008 conveyed to the appellant the sanction of the mining lease in favour of the appellant on the basis of his application under the Granite Policy of 2002. Before however the contract could be executed in his favour, an authoritative enunciation of law on the subject made by a learned Single Bench of this Court in Sanjay Sukhadiya, supra, by a detailed judgment

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rendered on 28.5.2008. The learned Single Judge in the aforesaid judgement has considered the Granite Policy, 2002 promulgated by the State Government. In para 22 of the judgement, the learned Single Judge has taken note of the submissions made by the State Government that so far the Government has not delineated plots for the Scheduled Castes, Scheduled Tribes and other Backward Classes and that it was in the process of delineating and demarcating the plots for them in accordance with Granite Policy, 2002. The learned Single Judge in para 23 of the judgment thereafter proceeded to note the order passed by the division bench directing the State to delineate and demarcate the plots which are to be reserved for the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes within a period of ten weeks. The learned Single Judge thereafter in para 28 of the judgement observed that the important question that arises for consideration was whether the delineation of the plots is condition precedent for grant of mining leases under the Rules of 1986 as well as under Granite Policy, 2002. It was thereafter that in para 34 of the judgement, the learned Single Judge held as under:

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“34. It will be worthwhile to mention here that the word “delineation” of plots was condition precedent before grant of mining leases to any person and before grant of granite mining lease to even a person who himself has searched and found the granite deposit in the Government land and informed so to the concerned authority and applied for grant of mining lease for that particular land. It may be because of the reason that there may be granite deposit under the soil spreading in several kilometers, then that person is entitled to

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lease for definite area of the land with ceiling of the area provided by Sub-clause (3) of Clause (2) of the Policy of 1995 and, therefore, unless the plot sought by the applicant is delineated, he cannot be granted lease of the land as that may be contrary to Sub-clause (3) of Clause (2) of the Policy of 1995 if the entire land is allotted to him for mining purposes.”

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It is on that note that the learned Single Judge lastly while concluding the judgement in para 49 has held as under:

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“xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Since the State has not followed the Granite Policy, 2002 which amounts to total denial of the benefit to the members of reserved category therefore, the State is restrained from granting any lease of any granite land in the State of Rajasthan without delineating the granite plots and without notifying them. However, it is made clear that the individual persons who are entitled for allotment of granite land because of fulfilling requisite conditions for grant of mining lease under the Granite Policy, 2002 because of their entitlement under Clauses 10, 12 and 14 of the Granite Policy, 2002, their rights shall remain as they are. The pending applications for grant of mining lease reserved under any notification shall be decided in terms of the Granite Policy, 2002 [as per Sub-clause (1) of Clause 16].”

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The writ petitions were therefore allowed with the four direction given in para 50 of the judgement. Para 50 (1) with which we are concerned read as under:

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“50. In the result, all the writ petitions are allowed and it is held that:

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(1) the State is bound to proceed as per the Granite Policy, 2002 and is restrained from

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granting mining lease in the Government land unless the Government identifies, delineates and notifies the mine in the area by making efforts for exploring the granite from their own officers as required by Proviso to Clause (1) of the Granite Policy, 2002.”

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The appeal against that order was dismissed by the division bench vide judgment dated 11.01.2011, where the division bench has specifically dealt with the direction no.1 in para 50 supra and has upheld the same, which is evident from the following observations:

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“The direction No.1 is that the State Government is bound to proceed as per the Granite Policy, 2002 and is restrained from granting mining lease in the Government land unless the Government identifies, delineates and notifies the mine in the area by making efforts for exploring the granite from their own officers as required by Proviso to clause (1) of the Granite Policy, 2002. We find that no exception can be taken by the State as the directions have been issued in terms of the Granite Policy, 2002 which has been framed by the State Government itself.”

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The Circular that was issued by the State Government subsequent to the aforesaid division bench judgement on 13.1.2012 has categorically noted that as on that date, there were 12 mining lease issued in favour of the members of SC and 2 in favour of the members of the ST. There were 19 pending applications of the members of the SC and 8 of the members of the ST and, therefore, it was directed to grant one mining lease each in favour of the applicants provided that if one applicant has filed more than one application, he shall be entitled to only one

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mining lease of his choice and remaining mining leases were decided to be allotted in the proportion of 50% by way of reservation and remaining 50% by auction, but only after delineation of mining plots. Therefore, the direction of the learned Single Judge for identification and delineation of the mining plots prior to its allotment would be a condition precedent and this condition has remained intact even in the judgement of division bench dated 11.01.2011 and in the Circular issued by the State Government on that basis. There is therefore no change in the position from the date the application of the appellant was dismissed for grant of mining lease by impugned judgement dated 19.3.2010 by Mining Engineer, Jaipur, not only on the ground that the mining lease area was not delineated as per the provisions of Granite Policy, 2002, but that order also took note of the fact that as per the verification report dated 16.6.2006, the land of khasra no.634 was recorded as gair mumkin Pahad (pasture purpose).

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We are not inclined to countenance the argument of the learned counsel for the appellant that the learned Single Judge while dismissing the subsequent second review petition of the appellant has not considered the argument with regard to Circular dated 13.1.2012. This argument of the appellant has been taken note of at second page of the order dated 9.11.2017 by the learned Single Judge in review petition. The learned Single Judge has taken note of the judgement of the division bench in Sanjay Sukhadiya, supra which has again been cited before us that if the delineation of the area is not made, no mining lease could be allotted. The learned Single Judge then took note of the fact that the Granite Policy of 2002 was withdrawn by notification dated 12.7.2012 and now Rajasthan Minor Mineral Concession

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Rules of 2017 have been promulgated, which would govern the allotment of the mining lease.

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Contention that by virtue of Rule 3 of the Rules of 2017 relating to Repeal and Savings, the previous sanction issued under the Rules of 1986 would be saved, is noted to be rejected as the sanction did not result in grant of mining lease and execution of the contract in favour of the appellant. The application for grant of mining lease was rejected on 19.3.2010 well before the promulgation of the Rules of 2017. The saving clause cannot be applied in the present situation on the analogy that initially the revision petition filed against the order of rejection, thereafter the writ petition filed thereagainst, then the review petition and now the appeal before the division bench, would all be taken as continuation of the original proceedings. The judgement of V. Karnal Durai, supra relied by learned counsel for the appellant is wholly distinguishable on facts and cannot be applied to the fact situation obtaining in the present case. That was a case where the Rules were amended during the pendency of the appeal against the rejection of the application for grant of lease and therefore it was held that Rules which were in force at the time of rejection of lease would apply and not the Rules, which were amended subsequently during pendency of the appeal. In the present case, the single bench judgement of this Court in Sanjay Sukhadiya, which has been upheld in entirety by division bench of this Court and therefore the matter would be covered by the dictum of law enunciated therein and the case of the appellant cannot be singled out for being accorded a different treatment.

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In our considered view, the impugned orders passed by the learned Single Judge do not suffer from any infirmity so as to warrant any interference by this Court.

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The appeal is accordingly dismissed.

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(GOVERDHAN BARDHAR),J

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(MOHAMMAD RAFIQ),J

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RS/31

Nathu Lal Meena v. State Mines Department Ors.

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Nathu Lal Meena v. State Mines Department Ors.

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