Rajasthan High Court - Jodhpur

Doli Mandir Shri Mahadev Ji vs State Of Rajasthan on 4 November, 2022

Bench: Sandeep Mehta, Kuldeep Mathur

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 396/2020

Doli Mandir Shri Mahadev Ji, Through Devotee
1. Paneey Singh S/o Shri Laxman Singh Aged About 38 Years.
2. 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.
----Appellant
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Revenue, Government Of Rajasthan, Jaipur.
2. District Collector, Pali.
3. Deputy Commissioner, Devsthan Department, Jodhpur
(As Per Collector Proceeding Title Doli Banam Mandir Shri
Mahadev Ji Gram Sinla, Through Deputy Commissioner,
Devsthan, Jodhpur).
4. Tehsildar, Jaitaran, District Pali.
5. Ram Gopal Cement Company Pvt. Ltd., 10-A, Amarvijay
Complex Near Hotel Man Singh, Sansarchand Road,
Jaipur, Through Its Resolution Holder Shri Mahesh Panwar.
----Respondents
Connected With
D.B. Spl. Appl. Writ No. 397/2020
Doli Mandir Shri Mahadev Ji, Through Its Village Representative,
Sarpanch, Smt. Ratan Kanwar Gram Panchayat Kharadi,
Panchayat Samiti, Jaitaran District Pali.
----Appellant
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Revenue, Government Of Rajasthan, Jaipur.
2. District Collector, Pali.
3. Deputy Commissioner, Devsthan Department, Jodhpur
(As Per Collector Proceeding Title Doli Banam Mandir Shri
Mahadev Ji Gram Sinla, Through Deputy Commissioner,
Devsthan, Jodhpur).
4. Tehsildar, Jaitaran, District Pali.

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

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

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

JUDGMENT

Date of Judgment: 04/11/2022
Reportable
(BY THE COURT)

1. Heard learned counsel representing the parties. Perused the

material available on record.

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.

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.

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.

For the sake of ready reference, Section 89 of the Land

Revenue Act is reproduced herein below:

"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.

(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.

(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.

(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).

(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.

(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.

(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:

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.

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."

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.

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.

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.

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.

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.

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.

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:

"çkFkhZ dh vksj ls fuEu fuosnu gS fd %&

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 [email protected]@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 i`Fkd&i`Fkd 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

(12 of 20) [SAW-396/2020]

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 %&

[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

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

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

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 catj gS tgk¡ i'kqvksa ds pjus dk pkjk Hkh ugh gksrk gSA mä Hkwfe çkFkhZ ds [kuuyht {ks= ds ifjf/k esa fLFkr gSA

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

(13 of 20) [SAW-396/2020]

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

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

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

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

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

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

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

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 "

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.

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.

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

(16 of 20) [SAW-396/2020]

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.

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;

(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;

(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;

(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.

(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.

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.

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:-

"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.

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."

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.

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.

18. The appeals are allowed accordingly.

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

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


                                    1 & 2-/Tikam Daiya/-









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