Dismissed

Manohar Lal v. State of Rajasthan

Rajasthan HC18 Jul 2024SAW/750/2024

Case brief

AI extract

What is this about?

This bench dismissed the special application challenging the expiration of a mining lease because the lessee failed to obtain Environment Clearance. The court held that the period for which the lease was closed due to the lessee's fault cannot be extended under the relevant Rules.

What did the court decide?

Applications dismissed; respondents directed to refund payments made by the appellant with interest at the prevailing bank rate as on 31st March 2023.

Manohar Lal Vs State of Rajasthan — Labour and Industrial Disputes | Rajasthan HC (2024)

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[2024:RJ-JD:29568-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 750/2024

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Manohar Lal S/o Shri Gopi Lal Mewada, Aged About 50 Years, Resident Of Near Nagar Palika Colony, Tehsil Amet, District Rajsamand (Raj.).

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----Appellant

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Versus

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1. State Of Rajasthan, Through The Principal Secretary, Department Of Mines And Geology, Secretariat, Rajasthan.

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The Mining Engineer, Amet Mines And Geology Department, District Rajsamand, Rajasthan.

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The State Environment Impact Assessment Authority, Through Its Chairman, 4, Jhalana, Institutional Area, Jaipur (Raj.) - 302004.

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----Respondents

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For Appellant(s) : Mr. Sanjeet Purohit Mr. Mudit Nagpal

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For Respondent(s) : Mr. Mahaveer Bishnoi, AAG

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE KULDEEP MATHUR Order

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18/07/2024

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(Per, Hon’ble Shree Chandrashekhar, J):-

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The appellant was aggrieved by the decision of the Mining Engineer communicated to him through the communication dated 21^st February 2024 whereby he was informed that the mining lease would expire on 9^th May 2024. Challenging this communication, the appellant approached the writ Court in S.B. Writ Petition No.6641/2024 with a prayer to restrain the respondents to take any action pursuant to the communication dated 21^st February 2024.

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By an order dated 30^th May 2024, the writ Court declined to interfere with the communication dated 21^st February 2024 on the

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[2024:RJ-JD:29568-DB]

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[SAW-750/2024]

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(2 of 10)

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ground that the lessee who had failed to obtain the Environmental Clearance (in short, ‘EC’) cannot be allowed to take benefit of his own wrong.

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At the outset, we may indicate that the present controversy has its genesis in the decision in “ Bajri Lease Lol Holders Welfare Society” reported in 2021 SCC Online SC 1043.

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In “ Bajri Lease Lol Holders Welfare Society” , the following recommendations (except “J”)made by the CEC were approved by

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the Hon’ble Supreme Court:

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“A. All the Khatedari leases located within 5 Kms from the river bank as well as leases where violation of the lease conditions including misuse of e-ravannas are detected are terminated forthwith and the State Government shall not issue fresh Khatedari leases except for Palaeo deposits in the District of Binaker without the approval of this Hon'ble Court.

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B. The State Government shall dispense with the Excess Royalty Collection Contract system in respect of any kind of sand mining leases forthwith and the royalty shall be paid on line by the lessee to the State Government and generate royalty paid e-ravanna before transporting of sand from the mining site;

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C. The MoEF&CC will issue EC in respect of all the valid Lol holders recommended by the EAC in its meeting held during 2014-2016 without insisting on submission of scientific study report as a precondition for grant of EC within a period of three months. MoEF&CC shall also prescribe detailed methodology in consultation with CMPDI for undertaking replenishment study during the course of mining as discussed in para 11 (iii) of this Report.

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D. River sand mining in Rajasthan is permitted to be conducted after obtaining all statutory clearances and payment of dues and applicable taxes following the procedure listed in para 11 (iii) of this report.

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E. The MoEF&CC shall arrange for scrutiny of the DSR prepared as provided in MoEF&CC Guidelines of 2016 and 2020 and the production figures approved in the DSR are scrupulously followed by the authorities under the EP Act 1986 while issuing the EC.

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F. The period of actual mining of sand under TWP should be adjusted against the five-year lease period.

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G. Government of Rajasthan will constitute an Empowered Committee headed by the Chief Secretary to consider and

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(3 of 10)

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[2024:RJ-JD:29568-DB]

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[SAW-750/2024]

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settle claims of excess payments collected from the Lol holders during the period of working under TWP. The Committee shall examine each of the cases and take a decision in this regard within a period of six months from the date of orders. Monthly progress reports in this regard may be sent to CЕС.

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H. The State Government will auction the sand mining leases after proper ground demarcation and after assessing the extractable sand resources as given in the approved DSR and after obtaining no objection certificates from all concerned authorities. The sale of mining blocks objected to by any of the government departments shall not be put up tender/auction.

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I. State Government to review the amendments to Rule 5(4) of RMMCR, 2017 so that it will not be an impediment for execution of sand mining lease.

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J. For brazen violation of this Hon'ble Court order dated 16.11.2017 exemplary penalty of Rs.10 lakhs per vehicle and Rs.5 lakhs per cu.m of sand seized may be imposed as a deterrent. This will be in addition to what has already been ordered/collected by the State agencies as penalty/ compensation.

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k. State Government of Rajasthan is directed to conduct drone survey in respect of all the remaining Khatedari leases and complete the same within the next four months to assess the irregularities if any committed by them. A copy of this Report may also be made available to CEC."

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The appellant who applied for a mining lease claims that the mining lease approved by Joint Secretary in his favor on 26^th February 2013 should be extended for a further period of 13 months and 9 days from the date of handing over the possession of the leasehold area to him. This is common ground that by virtue of the orders passed by the Hon’ble Supreme Court, 82 mining lease applicants who were issued Letter of Intent continued the mining operations. By virtue of the orders passed by the Hon’ble Supreme Court on 25^th November 2013 and 19^th December 2013, temporary work permission contract for the period between 19^th December 2013 to 28^th February 2014 was given to the appellant on 26^th December 2013. This is also not in dispute that by an order dated 27^th March 2014 the Hon’ble

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[2024:RJ-JD:29568-DB]

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[SAW-750/2024]

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(4 of 10)

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Supreme Court permitted the mining operations by the aforementioned 82 mining lease holders till further orders and consequential order was issued by the Mining Department on 31^st March 2014. However, the Hon’ble Supreme Court passed an order on 16^th November 2017 restraining the mining operations by those mining lease holders with immediate effect.

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The decision in “ Bajri Lease Lol Holders Welfare Society” w as rendered on 11^th November 2021 and the recommendations of the CEC dated 23^rd December 2020 were approved by the Hon’ble Supreme Court except the recommendation “J”. Pursuant thereto, the respondent no.1 passed an order dated 28^th March 2023 permitting the appellant to undertake mining operations for dies-non period, that is, for 13 months and 9 days. The appellant was required to deposit the requisite fee etc. and permitted to carry on the mining operations after obtaining the EC. On 31^st March 2023, a mining lease was executed in favor of the appellant on deposit of Rs.46,94,300/-. The appellant has put forth a plea that the delay in grant of the EC shall not curtail the period of 13 months and 9 days to carry on mining operations. This stand of the appellant is based on the Terms of Reference dated 9^th December 2013, mining plan approval dated 12^th December 2013, mining scheme approval dated 28^th June, 2023 and the EC dated 4^th March 2015. This is the stand of the appellant that on account of the change in the statutory regime whereunder the mineral “Bajri” was included as “minor mineral”, the appellant moved a fresh application for grant of EC on 9^th November 2023 but no decision was taken on his application and therefore the period of

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(5 of 10)

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[2024:RJ-JD:29568-DB]

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[SAW-750/2024]

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delay in grant of the EC must be excluded for reckoning 13 months and 9 days for carrying the mining operations by him.

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The writ Court held as under:

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20. -----

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In the present case, upon perusal of the condition no. 15 (6) of the sanction order dated 28.03.2023 (Annex.12), it was also categorically specified that the lease holder shall begin the work only after obtaining the EC from the said Ministry, which the petitioner has failed to do in the present case as till date the EC has not been granted in favour of the petitioner. The relevant condition of the sanction order dated 28.03.2023 (Annex.12) in this writ petition is reproduced as under: "15. अ्቗ शቔኔ�ः

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xxxx

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6 प्ሾाधारीकोप቟ኋा�वरणमं्ቔाल቟ኋ्ቛ ाराजारीहोनेवालीप቟ኋा�वरण्ቇ ी቟ኋरे्በ मेंअंकिकቔኔशቔኔ / किनቖኔ�शों कीपूण�पालनासुकिनकि%ቔኔकरनीहोगीቔኔथाइसकेअकिቔኔरिर्ሹ प቟ኋा�वरणमं्ቔाल቟ኋ्ቛ ारासम቟ኋ - सम቟ኋपर जारीहोनेवालेकिनቖኔ�शोंकीपालनाकरनीहोगी।साथहीप्ሾधारी्ቛ ाराप቟ኋा�वरणमं्ቔाल቟ኋसे इ्ቝ ा቟ኋरमे्ቇ्ቇ ी቟ኋरे्በ ( ई . सी .) ा्቎ होनेकेप%ाቔኔही्ቌे्ቔ मेंखननका቟ኋ�्ቚ ार्ቛ करसकेगा। "

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Moreover, taking into consideration Rule 16(3) of the RMMCR read with Section 34(1) of the RMMCR, the petitioner has failed to fulfill the mandatory obligation for commencing the mining operations and thus, merely because of the delay caused by the petitioner, the dies-non period cannot be extended. Rule 16(3) reads as under:

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"16. Grant of mining lease-

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(3) If the applicant or successful bidder, as the case may be, complies with the conditions of letter of intent within the stipulated or extended period of time, the mining lease shall be granted by the competent authority with the condition that the lessee shall commence mining operations after obtaining environment clearance:

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Provided that in the cases where letter of intent has been issued before commencement of the Rajasthan Minor Mineral Concession (Second Amendment) Rules, 2022 with the condition to submit environment clearance, mining lease shall be granted with above condition after deposition of late fees at the rate of ten percent of annual dead rent for delay of every month or part thereof.]"

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Rule 34(1) of the RMMCR, reads as under

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"34. Environmental safeguard.-

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(1) No mining lease or quarry licence shall be granted without obtaining prior consents, approvals, permits, no-objections and the like as may be required under applicable laws for commencement of mining operations.

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Thus, it is seen that the petitioner had the knowledge of the mandatory requirement of obtaining an EC prior to commencing mining operations, however due to petitioner’s own lethargic attitude in dealing with the compliance, the application for EC was filed with delay of 7 months 10 days and thus, the respondents had rightly issued the communication

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(6 of 10)

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dated 07.02.2024 (Annex.21) after the petitioner had failed to make statutory compliance.

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21. Upon examining the said condition along with the mandatory requirement as mentioned in the sanction order dated 28.03.2023 (Annex.12), it is writ large that the lease deed had been executed in favour of the petitioner on 31.03.2023, however due to its own fault, the petitioner filed a fresh application for the grant of EC on 09.11.2023 (Annex.18) after a delay of 7 months and 10 days. It is also seen that as the EC was not granted in favour of the petitioner, the petitioner could not commence the mining activities, and thus in the light of these circumstances, under Proviso to Rule 9(4), the dies-non period cannot be extended beyond the stipulated period of 13 months and 9 days, particularly when on account of the fault of the petitioner, the EC is not granted till date in favour of the petitioner. The relevant rule is reproduced as under:

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"9.Period of mining lease.-

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(4) Period of lease may be extended equal to the period for which the mines remained closed (dies-non) due to any court order and dead rent for such period shall not be chargeable:

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Provided that where lease remains closed due to any fault on the part of the lessee or where part of lease was only closed, the period shall not be extended and dead rent shall be chargeable for such period."

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The writ Court further referred to “ State of Rajasthan Vs. Sharwan kumar Kumawat” reported in 2023 SCC Online SC 898. and “Kerala State Beverages (M and M) Corporation Limited Vs. P.P. Suresh”, (2019) 9 SCC 710 and formed an opinion that the writ petitioner cannot claim the benefit under the doctrine of

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legitimate expectation. The writ Court observed as under:

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23. This Court also finds that the contention of the petitioner that the action of respondents is against the doctrine of legitimate expectation is baseless, since the legitimate expectation is a weak and sober right as compared to the rights ordained by a statute and the legitimate expectation being right which is not legal, cannot be enforceable unless the Government or the authorities have acted in an arbitrary or unreasonable manner while formulating such policy/statute as observed by the Hon'ble Apex Court in the case of State of Rajasthan v. Sharwan Kumar Kumawat reported in 2023 SCC OnLine SC 898. The relevant para of the judgment reads as under: "19. Legitimate expectation is a weak and sober right as ordained by a statute. When the Government decides to introduce fair play by way of auction facilitating all eligible persons to contest on equal terms, certainly one cannot contend that he is entitled for a lease merely on the basis of a pending application. The right being not legal, apart from being non-existent, it can certainly not be enforceable... xxxx

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(7 of 10)

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[SAW-750/2024]

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20. Kerala State Beverages (M AND M) Corporation Limited v. P.P. Suresh, (2019) 9 SCC 710:

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20. The decision-makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. [ Findlay, Inre, 1985 AC 318: (1984) 3 WLR 1159: (1984) 3 All ER 801 (HL)] So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated.”

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Thus, upon perusal of the lease date executed in favour of the petitioner dated 31.03.2023 (Annex.13), read with Rule 16(3) and 34(1) of the RMMCR, it becomes clear that the petitioner has failed to comply with the obligation of seeking an EC prior to commencing the mining activities and thus, the petitioner cannot be allowed to take benefit from his own wrong. Also, the respondents have rightly reckoned the dies-non period from the date of execution of the agreement in accordance with the sanction order dated 28.03.2023 as well as the provisions under Rule 21(6) of the RMMCR, since the possession of the lease had been granted in favour of the petitioner by virtue of the said lease dated 31.03.2023.

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The main ground to challenge the decision of the writ Court and, in turn, the communication dated 21^st February 2024 is that the period of dies-non can be counted from the date when the lessee was given possession of the leasehold area and started mining operations. Mr. Sanjeet Purohit, learned counsel for the appellant would submit that during the period of dies-non, no dead rent was recovered from the appellant and therefore the appellant is entitled for extension of the period of dies-non after the EC is granted to him. On the other hand, the learned Additional Advocate General laid stress on “proviso” to sub-Rule (4) of Rule 9 which says that where lease remains closed due to any fault on the part of the lessee or where part of lease was only closed the period shall not be extended and dead rent shall be chargeable for such period. Mr. Mahaveer Bishnoi, learned Additional Advocate General referred to a decision of this Court in “ Shri Kuber Associates Vs. State of Rajasthan and Ors”. (SBCWP No.6330/2024) and submitted that the controversy involved in the

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[SAW-750/2024]

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(8 of 10)

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present case has already been decided in “Shri Kuber Associates” (supra) wherein a learned Single Judge of this Court held that the commencement of the period of dies-non shall be reckoned from the date of execution of the mining lease.

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In the context of the present controversy, Rule 9(4) assumes significance which provides that the period of mining lease may be extended for a period equal to the period for which the mine remained closed (dies-non) due to any Court order and dead rent for such period shall not be chargeable. The lease dated 31^st March 2023 provided that the lessee/lessees shall hold the demised premises from 26^th December 2013 to 17^th November 2017 and from the date possession is given to the lessee that is to say for a period of 13 months 9 days of 5 years thence ensuing. This is also pertinent to mention that Rule 21(6) of the RMMCR provides that the currency of lease shall be from the date of registration of the lease-deed unless otherwise stated. In view of the aforementioned stipulations, not only the appellant shall be deemed to have possession of the mining leasehold area from the date of execution of the lease deed on 31^st March 2023, this cannot be overlooked that by virtue of the interim order passed by the Hon’ble Supreme Court the appellant had already taken possession of the leasehold area and it was only that the mining operations were closed on account of the restraint order passed by the State Government in compliance of the order dated 16^th November 2017 passed by the Hon’ble Supreme Court.

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Rule 16(3) of the Rajasthan Minor Mineral Concession Rules (RMMCR) provides that the lessee is required to comply with the conditions in the Letter of Intent and the mining operations can be

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[SAW-750/2024]

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(9 of 10)

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commenced only after obtaining environmental clearance. Proviso to sub-Rule (3) provides that where the Letter of Intent has been issued before commencement of the Rajasthan Minor Mineral Concession (Second Amendment) Rules, 2022 with a condition to submit the EC, the mining lease can be granted with such a condition on deposit of late fee. Rule 34(1) of the RMMCR further re-enforces the stand taken by the respondents that no mining lease or quarry licence shall be granted without obtaining prior consents, approvals, permits, no-objections and the like as may be required under the applicable laws for commencement of the mining operations. Furthermore, the order dated 17^th October 2022 under the heading “other conditions” provided that the lessee shall comply with the conditions in the notification dated 3^rd February 2022 and any other further condition. This was a condition that only on obtaining the consent to operate from the Pollution Control Board after execution of the mining lease the lessee can be permitted to carry on mining operations. 12. In “ Bajri Lease Lol Holders Welfare Society” , the Hon’ble Supreme Court noticing the rampant illegal mining observed as under:

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“The damage caused to the environment due to rampant unscientific illegal mining needs no reiteration. Unabated illegal mining has resulted in the emergence of sand mafia who have been conducting illegal mining in the manner of organized criminal activities and have been involved in brutal attacks against members of local communities, enforcement officials, reporters and social activists for objecting to unlawful sand excavation. The statistics provided by the State Government highlights the magnitude of the problem as about 2411 FIRs have been registered in relation to illegal mining in the State of Rajasthan, between 16.11.2017 and 30.01.2020. When this Court has restrained 82 mining lease / quarry holders from carrying on mining of sand and bajri unless a scientific replenishment study is completed and EC is issued by the MoEFCC, the State of Rajasthan ought not to have issued mining leases in favour of the Khatedars. It is clear from the

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(10 of 10)

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[SAW-750/2024]

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report of the CEC that the majority of the Khatedari leases are within 100 metres from the river bed. The 2020 Sand Mining Guidelines prescribe that mining plan for mining leases on Khatedari lands shall only be approved if there is a possibility of replenishment of the mineral or when there is no possibility of river bed mining within 5 km of the patta land / Khatedari land. Agreeing with the CEC's conclusions on the issue of mining leases in Khatedari lands facilitating legalisation of transportation and sale of illegally extracted sand, we approve the recommendation of the CEC that all Khatedari leases which are located within 5 km from the river bed and those leases where lease conditions have been violated have to be terminated forthwith and that Khatedari leases shall be granted only with the permission of this Court.”

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Therefore, the appellant who failed to obtain the EC could not have been permitted to carry on mining operations. This is no longer in the realm of any debate that a mining lease holder can operate and carry on the mining operations only after fulfilling the conditions under the mining laws. In “Common Cause vs. Union of India and Ors” (2017) 9 SCC 499, the Hon’ble Supreme Court held as under:-

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“illegal mining is not confined only to outside the mining lease area and in case where the holder of a mining lease did not adhere to the terms of the mining scheme, mining plan and the mining lease, then the mining operation shall be illegal or unlawful.”

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For the foregoing reasons, we find no merit in D.B. Spl. Appl. Writ No.750/2024 and is hereby dismissed. However, we direct the respondents to refund the payments made by the appellant with interest at the prevailing bank rate as on 31^st March 2023.

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(KULDEEP MATHUR),J

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(SHREE CHANDRASHEKHAR),J

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90- Arjun Daiya /- Whether fit for reporting: Yes/No

Manohar Lal v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Manohar Lal v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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