Allowed

Doli Mandir Shri Mahadev Ji v. State of Rajasthan

Rajasthan HC4 Nov 2022SAW/396/2020

Case brief

AI extract

What is this about?

Appeals against dismissal of writ petitions challenging the District Collector's order permitting a cement company to mine 114 bighas of temple khatedari land under Section 89 of the Land Revenue Act. The Division Bench held the Collector lacked jurisdiction, notice was never served on the temple, reversed the Single Bench and quashed the Collector's order.

What did the court decide?

Appeals allowed; Judgment-cum-Final Order dated 09.09.2020 of the Single Bench reversed and order dated 10.01.2020 of the District Collector, Pali quashed.

Doli Mandir Shri Mahadev Ji Vs State of… — Mining and Natural Resources | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 396/2020

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Doli Mandir Shri Mahadev Ji, Through Devotee

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Paneey Singh S/o Shri Laxman Singh Aged About 38 Years.

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Umaid Singh S/o Shri Devi Singh Aged About 36 Years, Both Are Devotee Of Mandir Shri Mahadev Ji Village Sinla Panchayat Samiti, Jaitaran District Pali.

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----Appellant

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Versus

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State Of Rajasthan, Through Secretary, Department Of Revenue, Government Of Rajasthan, Jaipur.

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District Collector, Pali.

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Deputy Commissioner, Devsthan Department, Jodhpur (As Per Collector Proceeding Title Doli Banam Mandir Shri Mahadev Ji Gram Sinla, Through Deputy Commissioner, Devsthan, Jodhpur).

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Tehsildar, Jaitaran, District Pali.

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Ram Gopal Cement Company Pvt. Ltd., 10-A, Amarvijay Complex Near Hotel Man Singh, Sansarchand Road, Jaipur, Through Its Resolution Holder Shri Mahesh Panwar.

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----Respondents

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Connected With

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D.B. Spl. Appl. Writ No. 397/2020

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Doli Mandir Shri Mahadev Ji, Through Its Village Representative, Sarpanch, Smt. Ratan Kanwar Gram Panchayat Kharadi, Panchayat Samiti, Jaitaran District Pali.

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----Appellant

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Versus

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State Of Rajasthan, Through Secretary, Department Of Revenue, Government Of Rajasthan, Jaipur.

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District Collector, Pali.

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Deputy Commissioner, Devsthan Department, Jodhpur (As Per Collector Proceeding Title Doli Banam Mandir Shri Mahadev Ji Gram Sinla, Through Deputy Commissioner, Devsthan, Jodhpur).

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Tehsildar, Jaitaran, District Pali.

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Ram Gopal Cement Company Pvt. Ltd., 10-A, Amarvijay Complex Near Hotel Man Singh, Sansarchand Road, Jaipur, Through Its Resolution Holder Shri Mahesh Panwar.

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----Respondents

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For Appellant(s) : Mr. Moti Singh For Respondent(s) : Mr. Ravi Bhansali, Sr. Advocate, assisted by Mr. Ramit Mehta and Mr. Tarun Dudiya Mr. Sunil Beniwal, AAG Mr. Manish Vyas, AAG

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HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

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J U D G M E N T

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Date of Judgment: 04/11/2022

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Reportable

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(BY THE COURT)

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1 . Heard learned counsel representing the parties. Perused the material available on record.

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2 . These appeals take exception to the Judgment-cum-Final Order dated 09.09.2020 passed by the learned Single Bench of this Court whereby, Writ Petition No.4315/2020 preferred by the appellant-petitioner Doli Mandir Shri Mahadev Ji through its village representative Sarpanch, Gram Panchayat, Kharadi, Panchayat Samiti Jaitaran, District Pali and Writ Petition No.5395/2020 preferred by two devotees of the temple namely Shri Panney Singh and Shri Umaid Singh, were dismissed.

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3 . The appellants-writ petitioners filed the writ petitions aforesaid for assailing the order dated 10.01.2020 passed by the

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District Collector, Pali under the purported exercise of powers under Section 89 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ‘the Land Revenue Act’) whereby, the application preferred by respondent No.5 Ram Gopal Cement Company Pvt. Ltd. to use 114 Bighas and 10 Biswas of land in various Khasras of Village Sinla, Tehsil Jaitaran, District Pali recorded in the name of Doli Banam Mandir Shri Mahadev Ji for subsidiary/ ancillary purposes viz . mining. The District Collector also directed the respondent No.5 to deposit compensation to the tune of Rs.2,63,55,679/- (Two Crore Sixty Three Lac Fifty Five Thousand Six Hundred and Seventy Nine Rupees) to the Devasthan Department within a period of one month so that the temple could be facilitated to purchase fresh chunk of land on account of disturbance of its land owing to the mining activities permitted to the respondent No.5.

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4 . The writ petitions were preferred primarily on two grounds (1) that the District Collector had no jurisdiction to entertain the application, and (2) that the temple, either through the Panchayat or through its Devotees, was not given opportunity of hearing and hence, the order dated 10.01.2020 passed by the District Collector suffered from gross violation of principles of natural justice and was also in contravention of the requirement of Section 89(3) of the Land Revenue Act.

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For the sake of ready reference, Section 89 of the Land Revenue Act is reproduced herein below:

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“ 89 . Right of minerals, mines, quarries and fisheries- The right to all minerals. mines and quarries and to all fisheries, navigation and irrigation in and from, a river shall

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vest in the State Government and the State Government shall, [xxx] have all powers necessary for the enjoyment of such a right.

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(2) The right to all mines and quarries includes the right of access to land for the purpose of mining and quarrying and the right to occupy such other land as may be necessary for purposes subsidiary thereto, including the erection of offices, workmen's dwellings and machinery. the staking of minerals and deposit of refuse the construction of roads, railways or tram lines, and any other purposes which the State Government may declare to be subsidiary to mining and quarrying.

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(3) If the State Government has assinged to any person its right over any minerals, mines or quarries, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-sections (1) and (2) should be exercised by such person, the Collector may, by an order in writing, subject to such conditions and reservations as he may prescribe; delegate such powers to the person to whom the right has been assigned: Provided that no such delegation shall be made until notice has been duly served on all persons having rights in the land effected and their objection have been heard and considered.

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(4) If, in the exercise of the right herein referred to over any land, the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the State Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Collector, or, if his award is not accepted, by the civil court, as nearly as may be in accordance with the provisions of the Rajasthan Land Acquisition Act, 1953 (Rajasthan Act XXIV of 1953).

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(5) No assignee of the State Government shall enter on or occupy the surface of any land without the previous sanction of the Collector, unless the compensation has been determined and tendered to the person whose rights are infringed.

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(6) if any assignee of the State Government fails to pay compensation as provided in sub-section (4), the Collector may recover such compensation from him on behalf of the person entitled to it, as if it were an arrear of land revenue.

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(7) Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in and has not been assigned by the State Government, shall without prejudice to any other action that may be taken against his liable, on the order in writing of

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the Collector to pay a penalty not exceeding a sum calculated at the rate of fifty rupees per ton, or a fraction thereof, of the minerals so extracted or removed:

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Provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose.

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Explanation – In this section, minerals include any sand or clay which the State Government may declare to have a commercial value or to be required for any public purpose. ”

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5 . The learned Single Bench, repelled the contentions advanced by the appellants-petitioners observing/ holding that the order passed by the District Collector was appealable and thus, the statutory remedy of the appeal not having been availed, the writ petition was liable to be dismissed on account of availability of alternative remedy. The argument regarding non-adherence to the principles of the natural justice was turned down on the ground that the Devasthan Department had been notified of the proceedings before the District Collector and hence, the requirement of providing opportunity of hearing had been complied with. Being aggrieved by the impugned order passed by the learned Single Bench, these two intra court appeals have been preferred.

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6 . Shri Moti Singh, learned counsel representing the petitioners appellants in both the appeals, vehemently and fervently contended that the impugned order passed by the learned Single Judge is bad in the eyes of law and deserves to be reversed. He fervently contended that the District Collector, Pali had no jurisdiction to entertain the application filed by the private

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respondent under Section 89 of the Land Revenue Act. Referring to the provisions of Section 50 of the Rajasthan Panchayati Raj Act, 1994, Shri Moti Singh urged that the Gram Panchayat Kharadi has the primary obligation of doing all functions and acts in relation to the properties falling within its jurisdiction which includes the Temple and its lands. The deity being a perpetual minor, notice of the proceedings under Section 89 of the Land Revenue Act was mandatory to be served upon the deity through the Gram Panchayat as its trustee. He urged that in the subject application preferred by the private respondent, the temple, which is private in nature having no control of the Devesthan Department, was intentionally and malafide impleaded through the Dy. Commissioner, Devasthan Department, Jodhpur. Resultantly, no notice was ever sent at the address of the temple. He further submitted that in the application filed by the private respondent to the District Collector, it was nowhere pleaded that it was seeking mining rights over the land assigned by the State Government for this purpose. As a matter of fact, there was not an iota of assertion in the application that the land of the temple was ever approved by the State Government as falling under the lease originally issued to one Mishrilal. He further submitted that the District Collector, proceeded with the matter as if he was sanctioning acquisition of the land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the Act of 2013’). The compensation was quantified and the cheque was forwarded to the Devasthan Department. He referred to the reply filed by the Devasthan Department in the appeal wherein, a

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specific assertion is made that the proceedings undertaken by the Collector and the order passed by the Collector are absolutely illegal. The temple is private in nature and consequently, the cheque has been returned by the Devasthan Department. He further urged that the assertion made by the respondents that other parties have approached different forums for challenging the order dated 10.01.2020 passed by the District Collector, would not impede the petitioners-appellants from exercising their bonafide rights of defending the land of the temple because neither the Gram Panchayat nor the appellants writ petitioners in appeal No.396/2020 have challenged the order passed by the District Collector before any other forum. Shri Moti Singh further urged that the mining area, which was sanctioned to the original mining lease holder, was 100 Hectares and as per the existing Revenue Entry No.861 (Annexure-3), the private respondent is already possessed of this land area which is categorised as ‘ Gair Mumkin Magri ’. He urged that the land of the temple is recorded as ‘डोली बनाम मन्दिर शश्री ममहादिहादेववजश्री वााकहादे दिहादेमह बएतनामम ’ and is a ‘ Barani Doyam ’ land. Two crops a year are being harvested on this land. Regarding the right of the petitioners to bring the writ petitions irrespective of the availability of the statutory remedy of appeal, Shri Moti Singh referred to the Supreme Court Judgment in the case of Popcorn Entertainment & Anr. vs. City Industrial Development Corpn. & Anr. reported in (2007)9 SCC 593 and urged that as the District Collector exercised powers without having jurisdiction, the bar of statutory remedy cannot negate the petitioners’ right to invoke the extraordinary writ jurisdiction of this Court to challenge the perverse and arbitrary action of the

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respondents. On these submissions, Shri Moti Singh vehemently and fervently implored the Court to accept the appeals and set aside the impugned order dated 09.09.2020 passed by the learned Single Bench as well as the order dated 10.01.2020 passed by the District Collector, Pali.

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7 . Shri Manish Vyas, learned AAG representing the Devasthan Department, supported the arguments advanced by the appellants’ counsel. He submitted that the temple in question is privately owned and the Devasthan Department has no control over it. After procuring legal opinion, the cheque of compensation forwarded to the department by the District Collector was returned. He further submitted that there is a clear mandate of the State Government by way of a circular dated 07.12.2009 whereby, a committee has to be formed to administer/govern lands of Government/ Non-Government temples located in rural areas. He submitted that hearing the committee in the matter of administration of the temple land is a mandate of law and the same not having been complied with by the District Collector, the order under challenge is unsustainable in the eyes of law.

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8 . Shri Sunil Beniwal, learned AAG refuted the submissions advanced by the appellants’ counsel. He urged that the District Collector has exercised jurisdiction well within the confines of law while passing the impugned order dated 10.01.2020. Notice of the proceedings under Section 89 of the Land Revenue Act was served on the Devasthan Department and that there is neither lack of jurisdiction nor breach of principles of natural justice in the

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impugned proceedings and hence, as per Shri Beniwal, the learned Single Judge was perfectly justified in rejecting the writ petitions preferred by the petitioners and relegating them to avail the statutory remedy.

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9 . Shri Ravi Bhansali, learned Sr. Advocate assisted by learned counsel Shri Ramit Mehta and Shri Tarun Dudia, Advocate representing the respondent No.5, vehemently and fervently opposed the submissions advanced by Shri Moti Singh. He urged that the respondent No.5 acquired the mining lease in question by way of a valid transfer approved by the Mining Department. Thereafter, the subject application was filed before the District Collector under Section 89 of the Land Revenue Act seeking permission to exercise mineral extraction rights on the land owned by the temple which was falling in the sanctioned mining lease area. No prayer was ever made by the respondent for acquisition of the land. The use of the term ‘ acquisition by the District Collector ’ in the impugned order was made in a casual manner. However, the final directions, which have been issued vide the impugned order dated 10.01.2020, are only limited to permitting the private respondent No.5 to carry out mining activities on the land in question. Furthermore, the temple has been suitably compensated with a huge sum of Rs.2,63,55,679/-, the cheque whereof was sent to the Devasthan Department. The private respondent is, even as on date, ready to offer the compensation quantified by the District Collector to the Devasthan Department and this amount can be used to purchase a fresh chunk of land for offsetting the loss caused to the temple by the mining activities

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permitted to the respondent No.5 under the impugned order. Shri Bhansali further urged that the learned Single Bench was perfectly justified in dismissing the writ petitions on the issue of maintainability as statutory remedy of appeal is available to the appellants herein against the impugned order passed by the District Collector. He further pointed out that few of the villagers have already availed remedies before different forums to challenge the order passed by the District Collector and as such, this Court should refrain from entering into the disputed questions of facts and that appeals should be dismissed on this very ground. He further submitted that in the intervening period, Mining Department carried out survey over the mining area in question and the Khasra numbers of the temple land were found to be covered by the mining lease issued in favour of Shri Mishrilal and hence, the District Collector was perfectly justified in accepting the application preferred by the respondent NO.5 (lessee) under Section 89 of the Land Revenue Act. He thus urged that the view taken by the learned Single Bench dismissing the writ petitions by the impugned order dated 09.09.2020 does not warrant any interference by this Court.

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10 . We have given our thoughtful consideration to the submissions advanced at bar and, have carefully perused the impugned order and the documents placed on record.

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11 . The respondent No.5 stakes a claim for carrying out mining activities on the land of the subject Khasras which admittedly are entered as the khatedari land of ‘डोली बनाम मन्दिर शश्री ममहादिहादेववजश्री

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वााकहादे दिहादेमह बएतनामम ’ (under the ownership and control). The category of the land, entered in the Jamabandi available on record, is ‘ Barani Doyam ’ and two crops a year are being regularly harvested on this land. As per the original mining lease issued to Shri Mishrilal in the year 1996, the total area of mining activity was capped 100 Hectares. It is crucial to note that as per the Jamabandi Entry No.861 of the Village Sinla (Annexure-4 of the writ petition), the respondent No.5 is already exercising mining rights over Government lands of Khasra Nos.348/3, 351/3, 353, 428, 433/3, 436/1, 439, 439/1, 458/5, 587/2, 593/1, 599/2, 602/1, 608/2, 609/1 and 612/1. This total land, which works out to nearly 600 Bighas, would cover the 100 Hectares area originally leased out to Shri Mishrilal. This fact is further fortified from the application which was submitted by the respondent No.5 to the District Collector under Section 89 of the Land Revenue Act. The pleadings made in the application have a material bearing on the fate of these appeals and hence, the same are being reproduced herein below for the sake of ready reference:

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“çkFkhZ dh vksj ls fuEu fuosnu gS fd %&

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1- ;g gS fd çkFkhZ dEiuh jkexksiky lhesaV dEiuh çkbZosV fyfeVsM dEiuh ,DV 1956 ds rgr jftLVMZ dEiuh gSA çkFkhZ dEiuh ds i{k esa Jheku~ lgk;d [kfu vfHk;Urk] lkstr flVh ds }kjk yht MhM fu"ikfnr gksdj mi iath;d dk;kZy; tSrkj.k ds le{k fnukad 1@11@2011 dks iathc) dh x;h gSA rRi'pkr fnukad 17 twu 2011 dks 'kqf) i= fu"ikfnr gksdj mi iath;d dk;kZy; tSrkj.k ds le{k iath;u gqvkA mä yht dk le;≤ ij fjU;wvy gksrk jgrk gSA yhtMh³ ds vuqlkj çkFkhZ dks xzke fl.kyk xko esa vofLFkr Hkwfe ftuds [kljk la[;k iFkd&iFkd gS j‚&eVsfj;y çkIr djus gsrq [kfut foHkkx }kjk [kfut nksgu djus dh Loh—fr nh xbZ gS vkSj blh vk'k; dk yht MhM fu"ikfnr fd;k x;k gS ftlls çkFkhZ dEiuh [kuu nksgu dh vf/kdkjh gSA

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2- ;g gS fd bl çdkj çkFkhZ dEiuh dks [kuu dk;Z gsrq vçkFkhZx.k dh Hkwfe tks ekStk xzke fl.kyk rglhy tSrkj.k] ftyk ikyh ds fuEu [kljksa esa vofLFkr gS] ftudk vokIr fd;k tkuk vko';d gS %&

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[kljk ua- jdck Hkwfe fdLe
440 33&08 ckjkuh nks;e
591 20&08 ckjkuh nks;e
592 4 ckjkuh nks;e
595 27&18 ckjkuh nks;e
603 5&17 ckjkuh nks;e
604 10 ckjkuh nks;e
605 7&03 ckjkuh nks;e
606 5&16 ckjkuh nks;e
dqy 114&10

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3- ;g fd mijksä la;qä [kkrsnkjh Hkwfe ij ljQsl jkbZV vçkFkhZx.k dk gS vr% jktLFkku Hkw&jktLo vf/kfu;e 1956 dh /kkjk 89 ds vuqlkj tc rd Jheku~ ds }kjk mä la;qä [kkrsnkjh Hkwfe;ksa dh {kfriwfrZ r; dj mldk Hkqxrku çkFkhZ }kjk foi{khx.k dks ugha fd;k tkrk gS] çkFkhZ [kuu iêk {ks= ds mä Hkkx esa [kuu dk;Z djus esa vl{ke gS rFkk mRiknu ij foijhr çHkko iM+sxk bl dkj.k çkFkhZ dks vçkFkhZx.k dh mä vkjkth;kr dks vokIr djuk vko';d gSA

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4- ;g fd vçkFkhZx.k dh futh [kkrsnkjh dh mijksä Hkwfe;ksa jktLFkku Hkw&jktLo vf/kfu;e 1956 dh /kkjk 89 o 89¼2½ ds vuqlkj dkuwu dh – f"V esa [kuu dk;Z ¼ekbZUl½ o lequq"kaxh ¼lClhfM;jh ijitst½ dk;Z dh ifjHkk"kk esa vkrh gSA çkFkhZ dEiuh dks [kuu dk;Z ,ao lequq"kaxh dk;Z gsrq mijksä Hkwfe;ks dh vko';drk gSA blds vHkko esa çkFkhZ dEiuh vius dk;Z dks ugh pyk ik;sxhA bl dkj.k /kkjk 89 Hkw&jktLo vf/kfu;e ds varxZr çkFkhZ dEiuh dks mä vkjkth;r dk mi;ksx o mldk vkf/kiR; çkIr djuk vko';d gS vkSj bl gsrq ;g vkosnu i= çLrqr fd;k tk jgk gSA mä Hkwfe miyC/k ugha gksus ls çkFkhZ dks viwj.kh; {kfr gksxhA

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5- ;g gS fd vçkFkhZx.k dks çkFkhZ dEiuh }kjk Hkwfe dk [kuu nksgu djus ls dksbZ vkfFkZd gkfu ugh gksrh gS vçkFkhZx.k dh mä Hkwfe dkfcy dk'r ugha gS] Hkwfe iFkjhyh vkSj ctj ga S tgk¡ i'kqvksa ds pjus dk pkjk Hkh ugh gksrk gS A mä Hkwfe çkFkhZ ds [kuuyht {ks= ds ifjf/k esa fLFkr gSA

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6- ;g gS fd çkFkhZ dEiuh mä Hkwfe çkIr djuk pkgrk gS vkSj /kkjk 89 ds çko/kkuksa ds vUrxZr Jheku~ U;k;ky; }kjk vçkFkhZx.k ds mijksä [kkrs dh Hkwfe dk eqvkotk fu/kkZj.k fd;s tkus ij eqvkotk jkf'k nsus gsrq rRij gSA

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7- ;g fd çkFkhZ ,oa mlds iwokZf/kdkfj;ks }kjk vçkFkhZx.k dks eqvkotk çLrkfor djrs gq,s lgefr çkIr djus ds dbZ ç;kl fd;s x;s ijUrq çkFkhZx.k ugha ekus tcfd vçkFkhZ dh Hkwfe çkFkhZ ds [kuuyht {ks= esa fLFkr gSA vçkFkhZx.k dh mä Hkwfe dks çkFkhZ ds fof/kor [kuudk;Z gsrq eqvkotk fu/kkj.k djrs gq,s [kuudk;Z gsrq miyC/k djk;k tkuk vko';d gSA

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8- ;g fd fu;ekuqlkj /kkjk 89 jktLFkku Hkw&jktLo vf/kfu;e 1956 ds çko/kku ds vUrxZr Jheku~ }kjk eqvkotk r; dj fn;s tkus ds i'pkr~ gh çkFkhZ vius [kuuiêk {ks= ds mä Hkw&Hkkx ¼vçkFkhZ dh [kkrsnkjh Hkwfe;k½ esa ços'k dj [kuu dk;Z djus esa l{ke gks ldsxk rFkk vius mRiknu dh o`f) dj ldsxk rFkk vçkFkhZx.k dks çkFkhZ ds ekbZfuaxyht {ks= esa fdlh çdkj dh v'kks/kuh; {kfr ugha gksxhA

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9- ;g gS fd jktLo fjdkMZ esa vçkFkhZx.k dk uke [kkrsnkjh dh gSfl;r ls ntZ gksus ls vçkFkhZx.k vk, fnu çkFkhZ dEiuh ds [kuudk;Z esa n[ky vUnkth djrs gS ftlls çkFkhZ dEiuh dks dkQh uqdlku gksrk gSA çkFkhZ dEiuh vçkFkhZx.k dks gksus okys uqdlku dk eqvkotk nsus ds fy;s rS;kj gS rFkk jkT; ljdkj dks Hkh dkQh jktLo dh vk; gksrh gSA

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10- ;g gS fd çkFkZuk i= ds lkFk jktLo fjdkMZ dh tekcUnh o yht MhM+ dh QksVksçfr lkFk is'k gSA

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11 ;g fd mä Hkwfe ekStk xzke fl.kyk rglhy tSrkj.k ftyk ikyh ¼jkt-½ esa fLFkr gksus ls çdj.k Jheku~ U;k;ky; ds {ks=kf/kdkj ,oa Jo.kkf/kdkj esa gSA

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12- ;g fd çkFkZuk i= fu/kkZfjr dksVZQhl] U;k; 'kqYd # 2@& ij ;g çkFkZuk i= çLrqr gSA

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13- ;g fd vU; otqgkt cjoä cgl çLrqr fd;s tk;saxs A

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vr% çkFkZuk i= çLrqr dj Jheku~ th ls fouez fuosnu gS fd çkFkZuk i= dh en la[;k 02 esa n'kkZ;s x;s ekStk xzke fl.kyk rglhy tSrkj.k] ftyk ikyh esa vofLFkr Hkwfe dk eqvkotk r; djkos ,oa Hkwfe çkFkhZ dEiuh dks miyC/k djok;sa rFkk [kkrsnkjku dks ikcUn fd;k tkos fd mijksä [kljs esa gLr{ksi ugha djsaA çkFkhZ }kjk vIçkFkhZx.k dks eqvkotk jkf'k vnk djus vFkok Vs.Mj djus ij mijksä vkjkth;kr dk dCtk rglhynkj }kjk çkFkhZ dEiuh dks fnyk;k tkdj rnlacaf/kr vadu jktLo jsdkMZ esa çkFkhZ dEiuh ds uke djus dk vkns'k çnku fd;k tkosa rkfd çkFkhZ dEiuh viuk [kuudk;Z lqpk: :i ls dj ldsA”

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A perusal of the pleadings of the application would clearly indicate that the private respondent did not indicate in the

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application the foundation on which, it was claimed that the disputed Khasras of land owned by the Temple were part of the originally allotted mining lease. It is clearly mentioned at para No.1 of the application that the applicant had a lease for carrying out mining activities in the various Khasras of the Village Sinla from which, it has been authorised to extract minerals by the Mining Department. At para No.2 of the application, it was mentioned that the Company was desirous of getting acquired the lands falling in Khasra Nos.440, 591, 592, 595, 603, 604, 605 and 606. The total measurement whereof was 114 Bighas 10 Biswas. At para No.4 of the application, it was mentioned that the mining was a subsidiary activity and thus, the land in question deserves to be acquired for advantage and benefit of the applicant. At para No.8 of the application, permission was sought by the respondent lessee to enter into the land of the temple for carrying out the mining activities. At para No.5 of the application, it was mentioned that the land was not fit to be cultivated and was ‘ Banjar ’ land which fact is contrary to record. Significantly enough, the application is totally silent on this aspect as to whether any attempt was ever made to seek permission for mining activities over the temple land since the issuance of the original mining lease. It does not stand to reason that despite the land of temple being a part of the mining lease, the lessee would never make an attempt to use the land for this purpose.

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12 . The proceedings, which were undertaken by the District Collector on the said application, reveal a startling state of affairs. The application was taken up on 04.01.2016 by the Additional

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District Collector, Pali who directed registration and summoning of the respondents through notice. The Tehsildar, Jaitaran was directed to submit a report as to whether the land was covered under the lease area, the DLC rate thereof, etc. The file was posted for 04.02.2016 on which date, a pertinent direction was given to summon the respondent no.1 (Commissioner, Devasthan Department). The case kept on being adjourned and finally, on 09.11.2017, it was noted in the proceeding sheet that the respondent No.1 had not been summoned and thus, PF notices be presented whereafter process be issued. On 06.08.2019, it was again recorded in the proceedings of the District Collector that the file was related to the Devasthan Department and thus, a letter be written to the department for appearing and pleading the case. Out of the blue, on 06.01.2020, it was recorded that the notice had been served on the Devasthan Department previously but no one had appeared and thus, the arguments would be heard on 10.01.2020. A very striking fact, which emerges from perusal of the order-sheet dated 06.01.2020, is that the Presiding Officer did not sign the same. Apparently thus, this order-sheet was managed by interpolation. Finally, the matter was posted on 10.01.2020 and the District Collector proceeded to pass the impugned order which is subjected to challenge by the petitioners.

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13 . It may be stated here that in the original mining lease granted to Mishrilal, description/demarcation of the mining area was not mentioned. Grant of mining leases over khatedari and other private lands was being done under the Rajasthan Minor Minerals Concession Rules, 1986 (hereinafter referred to as ‘the

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MMCR, 1986’) and the Directorate of Mines and Geology Department, Government of Rajasthan issued a mandatory direction vide communication dated 15.11.1995 that the mining leases for lands which did not belong to the State Government, would be granted only to the owner of such land or to the person who obtained and produced consent of the land owner. Apparently, as the mining lease granted to Mishrilal did not mention the description of the mining area, it can be presumed that the same pertained to Government lands only. It is not the case of any of the parties before this Court that consent of the land owner i.e. Doli Mahadev Ji Temple was ever obtained to carry out mining activities over the khatedari lands entered in the name of the temple. A notification dated 19.08.2008 was issued by the Mining Department in reference to the aforesaid communication dated 15.11.1995 wherein, it is stated that the said notification was challenged before the Rajasthan High Court and the Division Bench of the Court held that the directions/ guidelines were compliant of the legal framework. As per Rule 18(29) of the MMCR, 1986, the lessee/lessees are restrained from entering upon the surface of any occupied Government land or of any private land comprised within the leased area without previously obtaining the consent of the occupant in writing. Thus, even if it had been the case that the land of the temple was covered under the mining lease area, obtaining consent of the temple through its administrator was mandatory.

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14 . As a culmination of the discussion made herein above, this Court is of the following opinion:

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(I) that there is no material on the record to satisfy the Court that the land of the temple was ever a part of the mining lease granted to Shri Mishrilal;

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(II) that the respondent No.5, while filing the subject application before the District Collector, deliberately and intentionally, impleaded the Devasthan Department and made no effort whatsoever to implead the temple in its own capacity as a result whereof, notice of the proceedings under Section 89 of the Land Revenue Act was never forwarded to the temple;

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(III) that there is a grave doubt that the notice of the application was ever served on the Devasthan Department. The order sheet dated 04.02.2016 indicates that the District Collector gave a direction to summon the respondent No.1- Commissioner, Devasthan Department. On 09.11.2017, it was specifically indicated in the proceedings that the respondent No.1 had not been summoned and thus, PF Notice be presented whereafter, the process be issued. However, out of the blue, on 06.01.2020, it was recorded that notice had been served on the Devasthan Department earlier. In reference to this observation, learned counsel for the respondent No.5 has placed reliance on the receipt of notice on the Devasthan Department, Jodhpur dated 28.01.2016. However, there is a grave doubt in the mind of the Court as to the genuineness of this document because if at all, this notice had been served then the District Collector would not have noted in the order sheet dated 09.11.2017 that the process had not been served on the respondent. Furthermore, the order dated 06.01.2020 wherein, service was presumed to be complete, does not bear the signature of the Presiding Officer. Hence, it is clear

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that notice was never served on the Devasthan Department as well. The Devasthan Department has taken a pertinent stand in this court that the temple is private in nature and the order passed by the District Collector is without the sanctity of law. The cheque of compensation, which apparently was nothing but an exercise in formality, has been returned by the Devasthan Department;

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(IV) that as no material available to the District Collector even prima facie indicate that the khatedari land of the temple was covered under the mining lease in question, he had no jurisdiction to entertain the application under Section 89 of the Land Revenue Act. Thus, the proceedings before the District Collector were without jurisdiction.

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(V) that as the deity, who is a perpetual minor located in a rural area and as the management of such temple is to be done by the Gram Panchayat as per Section 50 of the Rajasthan Panchayati Raj Act and, since notice was never issued to the temple, apparently, proceedings undertaken by the District Collector were without jurisdiction and in blatant breach of the principles of natural justice as well as the mandate of Section 89(3) of the Land Revenue Act.

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15 . As a consequence, the objection of maintainability of the writ petition on account of statutory remedy would, in no manner, hamper the right of the Gram Panchayat and the devotees of the temple to challenge the legality and validity of the impugned order by invoking the extraordinary writ jurisdiction conferred upon this Court by Article 226 of the Constitution of India. We are thus of

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the firm opinion that the learned Single Bench was not justified in rejecting the writ petitions on these grounds.

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For drawing this conclusion, we are benefited by the following observations made by Hon’ble the Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors. reported in AIR 1999 SC 22 :-

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“15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

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16. Rashid Ahmad v. Municipal Board, kairana, MANU/SC/0005/1950 : [1950]1SCR566, laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commissioner, MANU/SC/0123/1954 : [1954]25ITR167(SC) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances.”

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The above observation has been followed by Hon’ble the Supreme Court in the case of Popcorn Entertainment (supra).

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16. It shall henceforth be ensured that whenever mining leases are issued, the boundaries of the mining area shall be properly defined therein so as to eliminate any chances of mischief by unscrupulous lessees.

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17 . Consequently, the impugned Judgment-cum- Final Order dated 09.09.2020 passed by the learned Single Bench in writ petitions, is reversed. The order dated 10.01.2020 passed by the District Collector, Pali is quashed.

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18 . The appeals are allowed accordingly.

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19 . A copy of this order be placed in each file.

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(KULDEEP MATHUR),J (SANDEEP MEHTA),J

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1 & 2-/ Tikam Daiya /-

Doli Mandir Shri Mahadev Ji v. State of Rajasthan

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Doli Mandir Shri Mahadev Ji v. State of Rajasthan

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