Partly allowed

Reena Kumawat v. the State of Rajasthan

Rajasthan HC28 Aug 2024CW/2680/2024

Case brief

AI extract

What is this about?

The Court quashed an order staying mining operations and the recommendation to cancel the lease, holding that the Mining Engineer lacks power to stop valid mining activities pending final adjudication of the lease's validity.

What did the court decide?

The communication dated 22.01.2024 stayed mining operations is quashed. The Minute of Proceedings recommending cancellation of the lease is set aside. The writ petition is partly allowed.

Reena Kumawat Vs the State of… — Constitutional and Fundamental Rights | Rajasthan HC (2024)

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[2024:RJ-JD:35447]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 2680/2024

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Reena Kumawat W/o Bhagwan Lal Kumawat, Aged About 40 Years, Rebariyon Ki Dhani, Kelwa, Tehsil and District Rajsamand.

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----Petitioner

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Versus

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The State of Rajasthan, through Principal Secretary, Department of Mines and Geology, Government of Rajasthan, Jaipur.

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The Director, Mines and Geology Department, Khanij Bhawan, Udaipur.

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The Mining Engineer, Mines and Geology Department, Division-II, Rajsamand.

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Sub Divisional Officer, Rajsamand.

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Tehsildar, Rajsamand.

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Vijaylal Rebari S/o Shri Goverdhanlal Rebari, Resident Of Rebariyon Ki Dhani, Kelwa Tehsil and District Rajsamand.

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----Respondents

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For Petitioner(s)	: Mr. SanjayNahar
For Respondent(s)	: Mr. Mahaveer Bishnoi, AAG assisted
	by Mr. Gaurav Bishnoi
	Mr. B.S. Sandhu for respondent no.6
	Mr. Mudit Nagpal on behalf of Mr.
	Sanjeet Purohit

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JUSTICE DINESH MEHTA

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Order

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28/08/2024

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By way of the present writ petition, the petitioner has challenged the communication dated 22.01.2024 and recommendation dated 01.02.2024 issued by the respondent no.3 - Mining Engineer, Division-II, Rajsamand, whereby mining operations of the petitioner have been stopped and the Director

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(Mines) has been requested to declare the renewal of mining lease dated 11.06.2008 to be null and void.

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Mr. Sanjay Nahar, learned counsel for the petitioner apprised the Court that a mining lease was granted in favour of one Radha Devi Sharma W/o Raman Sharma on 25.01.1988 on the basis of No Objection Certificate (hereinafter referred to as ‘NOC’), which was given by the khatedari tenant (land owner) on 22.04.1983. He submitted that thereafter, the mining lease in question got transferred in petitioner’s name in the year 2018, whereafter the petitioner has been carrying on mining operations.

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He submitted that all of a sudden, pursuant to the objection filed by the respondent no. 6, the respondent no. 3 has not only recommended cancellation of the mining lease duly granted in petitioner’s favour but has also directed the petitioner not to carry on mining operations.

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Learned counsel submitted that the crux of the objection so filed by the respondent no.6 was that no ‘NOC’ was obtained at the time of renewal/transfer of mining lease and argued that such objection was unsustainable, inasmuch as, at the time of grant of mining lease, the respondent – State had considered the ‘NOC’ dated 22.04.1983, which was given by Deva Rebari – the khatedari tenant and no fresh ‘NOC’ was required as has been held by the Appellate Authority in his order dated 04.04.2008, which has attained finality.

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It was also submitted by the learned counsel for the petitioner that though the civil court as well as revenue court have refused to grant injunction though which was prayed by the private respondent no.6, but the respondent no.3 has stayed the

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mining operations without there being any power or authority under the Act or under the Rajasthan Minor Mineral Concession Rules, 2017 (hereinafter referred to as ‘the Rules of 2017’) to do the same.

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Mr. Mahaveer Bishnoi, learned Additional Advocate General appearing for the respondent – State submitted that the respondent no.3 was justified in restraining the petitioner from carrying out mining operations, as the petitioner was illegally carrying on mining activities, as requisite consent was not obtained from the khatedari tenant.

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Mr. B.S. Sandhu, learned counsel appearing for the private respondent no.6 argued that the petitioner has no case worth interference, because firstly, the ‘NOC’ was granted in favour of Raman Sharma, the husband of erstwhile lease holder – Radha Devi Sharma and not to Radha Devi Sharma and secondly because said Deva Rebari had passed away, when the application for grant of mining rights was submitted. It was further contended that as per the Circular dated 15.11.1995, ‘NOC’ is required even at the time of renewal of mining lease and since the petitioner had applied for renewal in the year 2008, the ‘NOC’ was a must.

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Learned counsel relied upon rule 90 of the Rules of 2017 to contend that the respondent no.3 did have power and jurisdiction to stop the mining activities. 9. Heard learned counsel for the parties and perused the record.

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Considering that various disputed questions of facts are involved and the respondent no.3 – Mining Engineer has already recommended for revocation/cancellation of mining lease granted

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to the petitioner and parties are already entangled in litigation, Court feels that any observation made or finding recorded at this juncture would prejudice rights of either of the parties. This Court is, therefore, confining petitioner’s writ petition qua her challenge to the order dated 22.01.2024, staying the mining operations in spite of the fact that subsisting mining lease continues in her favour.

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Indisputably, the respondent no.3 by the communication dated 01.02.2024 has recommended that the mining lease granted in favour of the petitioner be revoked/cancelled on the grounds mentioned thereunder. The Director (Mines) is yet to pass final order in furtherance of the recommendation so made.

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The moot question, which is to be decided by this Court is, whether the respondent no.3 – Mining Engineer has power to stay the mining operations until the mining lease is finally cancelled or rights of the rival parties are duly determined by the competent authority.

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This Court is not much convinced with the argument of Mr. Sandhu that in view of rule 28(2)(ix) of the Rules of 2017, since prior permission is required even for entering the land of the tenant and no NOC was granted from the legal heirs of the original land owner Deva Rebari, the Mining Engineer was justified in stopping the mining operations.

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The provision of rule 28(2)(ix) so also rule 90 of the Rules of 2017 authorizes the Mining Engineer or any other Officer of the Mining Department can stop the mining operations in the event of any violation of terms and conditions of the mining lease or violation of statutory provisions.

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In the opinion of this Court, rule 28(2)(ix) of the Rules of 2017 are meant to deal with a situation when a mining lease holder for the first time enters the land of the land owner. Once the ‘NOC’ has been issued and mining lease has been granted, then for the purpose of renewal, in usual circumstances (but for the Circular dated 15.11.1995), the ‘NOC’ cannot be insisted upon.

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Be that as it may. The Circular dated 15.11.1995 has been held to be inapplicable by the Appellate Authority and though, no fresh ‘NOC’ was furnished by the private respondent, the mining lease was renewed, this Court is of the view that during the period when mining lease is subsisting, the respondent no.3 cannot ask the petitioner to stop mining operations.

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According to this Court, unless there is violation of the terms and conditions of the mining lease or some statutory provision, the mining operations of a lessee cannot be stopped. There is no such provision under the Rules of 2017.

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True it is, in furtherance of recommendation dated 01.02.2024, the competent authority or the Director (Mines) may take a view in favour of the petitioner – lease holder or against him. The mining lease can be annulled only as per rule 75 of the Rules of 2017 that too after following established procedure. The Director (Mines) may take some time to decide, but till such decision is taken, business activities and mining operations of a lease holder cannot be stopped out rightly.

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On account of staying the mining operations, petitioner’s business rights flowing from the mining lease and fundamental

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rights guaranteed under Article 19(1)(g) of the Constitution have been infracted.

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The communication dated 22.01.2024 (Annexure-4) being without authority of law is, hereby, quashed and set aside. 21. Director (Mines) shall be free to proceed in furtherance of the recommendation dated 01.02.2024 in accordance with law, without being influenced by any observations made hereinabove. 22. The writ petition is partly allowed. Stay application also stands disposed of, accordingly.

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(DINESH MEHTA),J

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299-Mak/-

Reena Kumawat v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Reena Kumawat v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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