Jethu Singh vs State And Ors
2023 Latest Caselaw 5853 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1344/2015

Babulal Balai (through LRs)

----Petitioner Versus State And Ors.

----Respondent Connected With S.B. Civil Writ Petition No. 1342/2015 Jethu Singh

----Petitioner Versus State And Ors.

----Respondent S.B. Civil Writ Petition No. 1343/2015 Jashoda Balai

----Petitioner Versus State And Ors.

                                                                ----Respondent


For Petitioner(s)         :    Mr. R M Lodha
                               Mr. Mahaveer Pareek
For Respondent(s)         :    Mr. Vikas Balia, Sr. Adv. With
                               Mr. DPS Charan
                               Mr. DS Jasol



              HON'BLE DR. JUSTICE NUPUR BHATI

                                Judgment



Reserved on:        21/07/2023
Pronounced on:      14/08/2023





                                     (2 of 32)                    [CW-1344/2015]

1. Though the matters has been listed in the 'orders' category,

however, at the joint request of the learned counsel for the

parties, the matters were heard finally today itself.

2. These petitions have been filed under Articles 226 and 227 of

the Constitution of India, claiming following reliefs:

SBCWP 1344/2015

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by a writ of mandamus/certiorari or any other appropriate writ, order or direction:-

(i) The order dated 17.11.2014 (Anx. 20) passed by the respondent No.2 as well as the order dated 17.7.2012 (Anx.19) passed by the Additional Director, Mines, Jodhpur may kindly be quashed and set aside.

(ii) That the order dated 31.8.1987 (Annexure-4) and 31.08.2009 (Annexure-17) may also be quashed and set aside and the allotment made in favour of respondent no.4 may be quashed.

(iii) The respondent No.4 may be directed to consider only the applications submitted on 28.12.1983 pursuant to the notification dated 30.11.1983(Annexure-1) and to grant Quarry No. 577 in Sodan ki Dhani to the petitioner on preferential basis excluding the other applicants since they are not before this Hon'ble Court; (iv)any other appropriate order or direction that may be considered just & proper in the facts & circumstances of the case; and

(v) allow the costs of the writ petition to the petitioner."

SBCWP 1342/2015

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by a writ of mandamus/certiorari or any other appropriate writ, order or direction:-

(i)The order dated 17.11.2014 (Anx. 19) passed by the respondent No.2 may kindly be quashed and set aside.

(ii) That the order dated 31.8.1987 (Annexure-4) and 31.08.2009 (Annexure-17) may also be quashed and set

(3 of 32) [CW-1344/2015]

aside and the allotment made in favour of respondent no.4 may be quashed.

(iii) The respondent No.3 may be directed to consider only the applications submitted on 28.12.1983 pursuant to the notification dated 30.11.1983 (Annexure-1) and to grant Quarry No. 578 in Sodan ki Dhani to the petitioner on preferential basis excluding the other applicants since they are not before this Hon'ble Court; (iv) any other appropriate order or direction that may be considered just & proper in the facts & circumstances of the case; and

(v) allow the costs of the writ petition to the petitioner."

SBCWP 1343/2015

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by a writ of mandamus/certiorari or any other appropriate writ, order or direction:-

(i) The order dated 17.11.2014 (Anx. 20) passed by the respondent No.2 as well as the order dated 17.7.2012 (Anx.19) passed by the Additional Director, Mines, Jodhpur may kindly be quashed and set aside.

(ii) That the order dated 31.8.1987 (Annexure-4) and 31.08.2009 (Annexure-17) may also be quashed and set aside and the allotment made in favour of respondent no.4 may be quashed.

(iii) The respondent No.4 may be directed to consider only the applications submitted on 28.12.1983 pursuant to the notification dated 30.11.1983 (Annexure-1) and to grant Quarry No. 577 in Sodan ki Dhani to the petitioner on preferential basis excluding the other applicants since they are not before this Hon'ble Court; (iv) any other appropriate order or direction that may be considered just & proper in the facts & circumstances of the case; and

(v) allow the cost of the writ petition to the petitioner."

(4 of 32) [CW-1344/2015]

3. Since, common questions of facts and law are involved in these

matters, therefore, they are being decided by this common order.

For the purpose of deciding this bunch of matters, facts of SBCWP

No. 1344/2015 are being taken into consideration.

4. The brief facts of the case are that the Mining Engineer,

Jodhpur delineated Sodan ki Dhani Sandstone boundary in the

year 1961 and subsequently, the quarry area map was extended

in the year 1983 dated 30.11.1983. A notification was issued by

the Mining Engineer, Jodhpur, inviting applications for grant of

Rent cum royalty leases in this block for quarry No. 526 to 615 on

28th December, 1983. It was mentioned in the notification that

allotment shall be made under Rule 29 of the Rajasthan Minor

Mineral Concession Rules, 1977 (hereinafter referred to as 'Rules

of 1977').

5. Thereafter the petitioner submitted an application for allotment

of Quarry No. 576 Sodan ki Dhani in the prescribed form and in

the manner as stated in the notification dated 30th November,

1983 and deposited the application fee of Rs. 5/- as per Rule 25 of

the Rules of 1977 along with 36 other persons, whereas, Smt.

Reena Solanki, respondent No.5, did not submit any application on

28th December, 1983. The Government of Rajasthan vide its order

dated 10th January, 1986 fixed three months limit for disposal of

the applications for Rent-cum- royalty leases. But Mining Engineer,

Jodhpur, respondent no. 4, did not dispose of the applications

within the time limit fixed by the Government. The respondent No.

4 granted hundreds of quarries in Sodan ki Dhani area as was

notified.

(5 of 32) [CW-1344/2015]

6. Then thereafter, in the year 1986, new Rules came into

existence and the old rules, i.e, Rules of 1977, were repealed vide

Gazette Notification dated 04.03.1986. The Mining Engineer,

Jodhpur vide its notification dated 19.06.1986, which was

published in "Jaltedeep" Daily News Paper dated 21.06.1986

advertised that those persons who have applied for grant of rent

cum royalty leases under Rajasthan Minor Mineral Concession

Rules, 1977 and have not received final reply from his Office, such

applicants may submit application in Form No. 1C under Rule

23(2) of Rajasthan Minor Mineral Concession Rules, 1986

(hereinafter referred to as 'Rules of 1986') within 15 days of the

advertisement by depositing difference application fee of Rs. 20/-,

failing which all applications submitted under the Rules of 1977

shall be deemed to be rejected.

7. Then in connection with the disposal of the pending applications

for mineral Sandstone near village Fidusar, Kaliberi, Paldi District

Jodhpur the Director of Mines and Geology Department,

Rajasthan, Udaipur wrote a letter dated 11.09.1986 and directed

the Mining Engineer, Jodhpur that all pending applications received

prior to commencement of the Rules of 1986 may be rejected by

refunding application fee and action may be taken for allotment

under new Rules.

8. Thereafter, the applications dated 28.12.1983 were rejected by

the Mining Engineer, Jodhpur vide order dated 31.08.1987

mentioning therein that applications were submitted under the

Rules of 1977 and now, the Rules of 1986 has come into force and

allotment of quarries is to be done in accordance with these Rules.

(6 of 32) [CW-1344/2015]

9. The State Government then issued directions vide order dated

17.12.1988, that in old notified boundaries (the areas already

notified prior to coming into force of the Rules of 1986 and in

process of grant) the quarry licenses shall be granted without

adopting the procedure for lottery as envisaged by Rule 27 of the

Rules of 1986.

10. Thereafter, one Sh. Dinesh Chandra, Respondent No.5

submitted the application dated 18.12.1992 for the allotment of

Quarry No. 576, which was subsequently rejected by the Mining

Engineer, Jodhpur vide order dated 12.01.1993, stating that:

"(i) this quarry has not been sanctioned single time, it has to be characterized as per rules.

(ii) quarry has to be notified" .

11. Thereafter, Sh. Dinesh Chandra filed a revision application

against the order of Mining Engineer, Jodhpur dated 12.01.1993

before the Joint Secretary, Department of Mines, Respondent No.

2, to which the reply was filed by the office of Mining Engineer .

The Revision petition was dismissed vide order dated 11.01.1995

observing that the applications for the Quarries were disposed of

legally.

12. Then, the State Government amended the Rules of 1986 by

adding second proviso to Rule 27 (2) and Rule 27 D vide

notification dated 12.08.1994, which was published in Gazette

Extra-Ordinary Part 4 (C) dated 12.08.1994.

13. Thereafter, the Mining Engineer, Jodhpur, Respondent No.3 wrote a letter dated 16.06.1995 to the Deputy Secretary,

(7 of 32) [CW-1344/2015]

Department of Mines, Government of Rajasthan stating therein that:

"it has been directed in the judgment dated 11th January, 1995 passed in revision No. F. 16 (455) Khan/Gr-2/93 that quarry may be notified after categorization, but now the State Government has amended the Rajasthan Minor Mineral Concession Rules, 1986 by adding second proviso to rule 27(2), hence provisions of this rule shall not apply for plots delineated prior to these rules. This office has submitted the reply of the revision on 10th June 1994 prior to this amendment. Hence matter may be reconsidered and directions may be issued, so that quarries may be notified."

14. Then the Deputy Secretary, Department of Mines, Government

of Rajasthan, vide it's letter dated 07.10.1995 informed the Mining

Engineer, Jodhpur, that in connection with the order dated

11.01.1995 passed in the matter of Quarry No. 582, 576, 580,

578 and 577, if Quarries were delineated previously, necessary

action may be taken under present rules.

15. Thereafter, Shri Dinesh Chandra again applied for the

allotment of the Quarry No. 576 by the application dated

05.12.1995 to the office of Minig Engineer, Jodhpur, Respondent

No. 4. The application dated 05.12.1995 by the Mining Engineer,

Jodhpur vide order dated 23.12.1997. Aggrieved by this rejection

of the application dated 05.12.1995 by the Mining Engineer, Shri

Dinesh Chandra, Respondent No. 5 filed an appeal under Rule 43

of the Rule of 1986 before the Additional Director (Mines), upon

which the Additional Director (Mines) granted Stay vide order

dated 02.06.1998.

16. Then one, Shri Kailash Narayan Soni suo moto submitted an

application dated 27.12.1997 for the grant of Quarry No. 576 to

(8 of 32) [CW-1344/2015]

the Mining Engineer, Jodhpur. The Mining Engineer then alloted the

Quarry No. 576 to Shri Kailash Narayan Soni vide order dated

03.04.1998.

17. Thereafter, Shri Dinesh Chandra, Respondent No.5, submitted

an application dated 09.08.1998 for copy of the order dated

03.04.1998 sanctioning the quarry No. 576 which was given on

09.08.1998.

18. Then, Shri Dinesh Chandra, Respondent No.5, filed a Revision

Petition in the garb of the order dated 03.04.1998 by which the

Mining Engineer had alloted the Quarry No. 576 to Shri Kailash

Narayan Soni.

19. The Mining Engineer, Jodhpur and Shri Kailash Narayan Soni

filed reply to the above mentioned Revision Petition stating that

the applicants who applied under the Rules of 1977 were rejected

on 31.08.1997. Shri Dinesh Chandre submitted an application on

18.12.1992, which was rejected by the Mining Engineer, Jodhpur,

vide order dated 12.01.1993 against which Shri Dinesh Chandre

filed a Revision Petition which was rejected vide order dated

11.01.1995.

20. Thereafter, Shri Dinesh Chandre filed a writ petition before

this Hon'ble Court in SBCWP 1582/1995 which was dismissed by

the Hon'ble Court vide judgement dated 19.11.1998.

21. Then the Joint Secretary, Department of Mines, Government

of Rajasthan, Respondent No. 2, set aside the allotment / sanction

vide order dated 29.03.2001 with the specific deirection to

consider all the applications received for the Quarry No. 576 and

issue order for allotment of the Quarry as per the provisions of the

(9 of 32) [CW-1344/2015]

Rules of 1986. The aforesaid sanction/allotment was made in

favour of Shri Kailash Narayan vide order dated 03.04.1998.

22. Thereafter, aggrieved by the order dated 29.03.2001 passed

by Joint Secretary, Department of Mines, Government of

Rajasthan, filed a Writ Petition before the Jaipur Bench of this

Hon'ble High Court SBCWP 1613/2001 which was decided by Writ

Petition No. 1540/2001 by a common order dated 19.04.2010,

whereby the Hon'ble court upheld the order of Revisional Court

which remanded the matter back to the Deciding Authority, i.e;

the Mining Engineer, Jodhpur.

23. Thereafter, Shri Kailash Narayan filed a Special Appeal against

the order dated 19.04.2010 which was disposed of vide order

dated 19.09.2011, whereby the Hon'ble Court said that the

appellants have the remedy available under the Rules and also,

the condonation of delay can be allowed in accordance with the

law.

24. Before the aforesaid Special Appeal was to be decided by the

court, the Mining Engineer, Jodhpur alloted the Quarry No. 576 to

Shri Dinesh Chandre, Respondent No. 5, vide order dated

13.08.2010.

25. The Petitioner, then, aggrieved by the order dated 13.08.2010

passed by the Mining Engineer, Jodhpur, filed an appeal dated

07.04.2011 before the Additional Director (Mines), Jodhpur, which

was rejected by the Additional Director (Mines) vide order dated

17.07.2012. Aggrieved by the order dated 17.07.2012, the

petitioner filed a Revision Petition before the Joint Secretary,

(10 of 32) [CW-1344/2015]

Department of Mines, Government of Rajasthan, Respondent No.

2, which was also rejected by the vide order dated 17.11.2014.

26. Hence, aggrieved by the rejection vide order dated

17.11.2014, the petitioner has preferred this Writ Petition.

27. The learned counsel for the petitioners submitted that the

advertisement/notification dated 19th June, 1986 issued by the

Mining Engineer, Jodhpur, which said that the persons who had

applied for grant of rent cum royalty leases under the Rules of

1977 will stand rejected, is illegal and wrong.

28. The learned counsel for the petitioners further submitted that

the order dated 21.08.1986 by the Director, Mines by which all the

applications dated 28.12.1983 were rejected was never sent and

communicated to the petitioner.

29. The learned counsel for the petitioners also submitted that the

order dated 13.08.2010 (ANNEXURE-16) has been passed by the

Joint Secretary, Department of Mines, Government of Rajasthan,

Respondent No.2, in defiance of the directions issued on

29.03.2001 (Annexure-12) and the Hon'ble High Court on

02.09.2008 (Annexure-14). In order dated 29.03.2001 (Annexure

12) the Joint Secretary, Department of Mines, Government of

Rajasthan, Respondent no.2 held as under:

"अतः उपरोक्त विवेचना के प्रकाश में प्रार्थीगण द्वारा प्रस्तुत रिवीजन स्वीकार की जाती है और खनि अभियन्ता, जोधपुर द्वारा पारित आदे श दिनां क 3.4.98) के द्वारा अप्रार्थीगण के पक्ष में विवादित खानों के आवंटन आदे श निरस्त किये जाते हैं एवं प्रकरण खनि अभियंता, जोधपुर को रिमाण्ड किया जाकर खनि अभियंता को आदे श दिया जाता है कि वह इन खानों के लिए प्राप्त आवेदन पत्रों पर विचार कर अप्रधान खनिज रियायत नियमावली 1986 के प्रावधानों के अन्तर्गत आदे श जारी नियमानुसार आवंटन की कार्यवाही करे ।"

(11 of 32) [CW-1344/2015]

The learned counsel for the petitioners also submitted that the

Hon'ble High Court Jaipur Bench in judgment dated 02.09.2008

(Annexure -14) categorically held that "there was no need of any

re-delineating the area in question and the same was to be

allotted on the basis of the priority as per pre-delineation of the

plot before coming into force of the Rules of 1986."

The learned counsel for the petitioners further submitted that the

impugned order dated 13.08.2010 (ANNEXURE- 16) does not

contain any iota of empirical and scientific evidence supporting the

facts. The Respondent No. 4 has flouted the directions of the Dy.

Secretary to the Government and the Hon'ble High Court and

without any semblance of any evidence has passed the impugned

order. The impugned order dated 31.08.1987 (Annexure 4), Order

dated 13.08.2010 (Annexure 16) and Order dated 17.07.2012

(Annexure 18) are wholly illegal, arbitrary and contrary to the

Rules and deserve to be quashed.

30. The learned counsel for the petitioners further submitted that

in the year 1986 new Rules came into existence w.e.f. 04.03.1986

and the old rules, that is, the Rules of 1977 were repealed vide

Gazette Notification dated 04.03.1986 published in Rajasthan

Gazette Extraordinary Part 4 (Ga). The Mining Engineer, Jodhpur-

respondent No. 3 vide its advertisement/ notification No.

ME/JO/Khalee-1/86/673 dated 19.06.1986, which was published

in 'Jaltedeep' Daily News Paper dated 21.06.1986 advertised that

"those persons who have applied for grant of rent cum royalty

leases under Rajasthan Minor Mineral Concession Rules, 1977 and

(12 of 32) [CW-1344/2015]

have not received final reply from his Office, such applicants may

submit application in Form No. 1C under Rule 23(2) of Rajasthan

Minor Mineral Concession Rules, 1986 within 15 days of this

advertisement failing which all applications submitted under Rule,

1977 shall be deemed to be rejected."

It was also submitted that the Mining Engineer, Jodhpur was not

authorized to issue such an advertisement/ notification, because it

was beyond his jurisdiction and also, the advertisement was

published in an unknown or little known newspaper Jaltedeep'

would also not be valid. It was further submitted by the learned

counsel for the petitioner that advertisement in an unknown

newspaper stands on the same footing as no advertisement at all.

And the statutory Rules cannot be overridden by executive orders

or executive practice. The Government could not have restricted

the operation of the statutory rules by issuing the executive

instructions. The executive instructions may supplement but not

supplant the statutory rules.

31. The learned counsel for the petitioners also submitted that the

Government of Rajasthan vide it's Order No.

F.14(5)KHAN/Gr.I/180, dated 10.01.1986 fixed three months time

limit for disposal of the application for Rent-cum-royalty leases.

The Mining Engineer has not disposed of that applications till date.

If the government is in it's actions lethargic, then the applicants

can't be made to suffer. By making the application at the earliest

point of time, not only the petitioner has acquired a preferential

right of treatment of his application but also by waiting for so

(13 of 32) [CW-1344/2015]

l;ong, complying with the legal requirements, he has acquired the

legitimate expectation that the petitioner's application will be

considered in accordance with the law in view of the preferential

rights.

32. The learned counsel for the petitioners further submitted that

the Mining Engineer, Respondent No. 4, sanctioned the disputed

quarry in favour of Shri Dinesh Chandre, Respondent No. 5, vide

order dated 13.08.2010 and many others without demanding

difference of application fee. Thus it is clearly in violation of the

petitioner's right of equality as enshrined in Article 14 of the

Constitution of India, in as much as for the persons similarly

situated and similarly circumstanced, different yard sticks have

been adopted by the respondents.

33. The learned counsel for the petitioners also submitted that

Rule 1 of the Rules of 1986 is Short title, extent and

commencement. Sub-Rule 1 (3) speaks that these Rules shall

come into force on the date of their publication in Rajasthan

Gazette, i.e., 04.03.1986. It is well-settled rule of construction

that every statute or statutory Rule is prospective unless it is

expressly or by necessary implication made to have retrospective

effect. Unless there are words in the statute or in the Rules

showing the intention to affect existing rights the Rule must be

held to be prospective. If a Rule is expressed in language which is

fairly capable of either interpretation it ought to be construed as

prospective only. In the absence of any express provision or

necessary intendment the rule cannot be give retrospective effect

except in matter of procedure.

(14 of 32) [CW-1344/2015]

34. The learned counsel for the petitioners also submitted that the

petitioner was never made known of the order rejecting his

application and he was under the impression that stay order is

operating in respect of the quarry and files are with the litigation

branch and, therefore, nothing can be said. It is submitted that

order dated 31st August, 1987 rejecting the application of the

petitioner dated 28.12.1983 was never communicated to the

petitioner. It was only in March, 2011 that the petitioner came to

know from the office of the Mining Engineer, Respondent No. 4,

that his application had long back been rejected in the year 1987

and after obtaining the copy of the order dated 31.08.1987 of the

rejection of the application dated 28.12.1983 approached the

Court of the Additional Director (Mines), Department of Mines and

Geology, Jodhpur by way of appeal on 07.04.2011.

35. The learned counsel for the petitioners further submitted that

in the present case, it was made clear in the notification dated

30.11.1983 itself that the allotment shall be made as per Rule 29

of the Rules of 1977 on preferential basis. Rule 29 of the Rules of

1977 reads as follows:

"29. Preferential right of certain persons.- (1) The rent-cum- royalty leases for all minerals excluding marble shall be granted to persons belong to the following categories in the descending order of priorioty:-

(I) Mannual workers in the mines;

(ii) Persons belong to the schedule caste/scheduled tribes;

(iii) Village artisans;

(iv) Landless labourers;

(v) Ex-soldiers including members of para military forces belonging to Rajasthan, who have been permanently disabled and

(15 of 32) [CW-1344/2015]

the dependants of those who have been killed in action; and Rajasthan State Government servants who have

(vi) become permanently disabled while on duty or the dependents of those who have been killed on duty: Provided that where two or more applications have been received for the same land, on the same day and from the persons belonging to such one of the categories as mentioned above the competent authority, after taking into consideration the matters specified below, may grant lease to such one of the applicants as it may deem fit:-

(i) Past experience in mining with reference to the scientific exploitation and conservation of minerals;

(ii) Willingness to set up a mineral based industry in the State;

(iii) Technical know how;

(iv) Financial soundness and stability;

(v) Number of mining leases held; (vi) Any dues outstanding in his name or in the name of the firm of which he is/was a partner:

Provided... Provides...."

It was further submitted by the learned counsel for the petitioners

that upon the plain examination of the Rules it would be evident

that the preferential rights are hedged by limitations. The

preference cannot be claimed automatically and preference can be

considered only if the conditions for consideration of such

preference come into existence. It is further submitted that

Proviso to Rule 29 provides that where two or more applications

have been received for the same land, on the same day and from

the persons belonging to such one of the categories the

competent authority, after taking into consideration the matters

(16 of 32) [CW-1344/2015]

specified, may grant lease to such one of the applicants as it may

deem. The Rules of 1977 ensure the selection of most deserving

candidates and provides priority for grant of mineral concession.

The preference has to be exercised only in favour of persons who

are manual workers in the mines and the question of preference

would arise only when applications are received on the same day

and not otherwise. While considering the preference a person

claiming such right will also have to fulfill the conditions laid down

in Rule 23 and Notification inviting applications. A perusal of these

provisions and the procedure provided for implementing such a

preference would clearly indicate that people of the general

category are not excluded from the zone of consideration. It is

only in the contingency referred to in Rule 29 that the Rule of

preference will be pressed into service and not otherwise.

36. The learned counsel for the petitioners also submitted that

Proviso to Rule 27 (2) and Rule 27 D of the Rules of 1986 as

inserted through amendment on 12.08.1994 relating to grant of

quarry license for plots delineated prior to commencement of 1986

Rules also does not provide for any categorization or lottery but

speaks of a preferential rights of prior applicants. Rule 27 (2) and

270 reads as under:

"Rule 27 (2) Whenever a new block of quarries is delineated, the plots to be reserved for allotment to different categories of persons, shall be decided by the competent authority by method of lottery and shall be notified accordingly for inviting applications;

Provides that when the total number of plots for allotment is less than 10, these shall be granted to persons belonging to

(17 of 32) [CW-1344/2015]

the categories specified in sub- rule (1) in the descending order of priority.

"Provided further the provisions of this rule shall not apply for plots delineated prior to these rules."

"Rule 27-D. Grant of quarry licence for plots delineated prior to commencement of these rules.

(1) Where two or more persons have applied for quarry in respect of the same plot, applicant whose application was received on earlier date shall have a Preferential right for the grant of quarry licence over an application whose application was received later.

(2) Where two or more applications are received on the same day for any one plot, the competent authority may select and issue quarry licence to any one of the eligible applicants by the method of lottery which shall be drawn by any two of the following persons:-

(a) Representative of the Directorate not below the rank of Mining Engineer;

(b) MLA/Pradhan of the area; and

(c) Collector or his nominee not below the rank of Rajasthan Administrative service."

The counsel further submitted that in the present case the

petitioner is only applicant having submitted application on

28.12.1983 and, therefore, there was no impediment in way of

grant of quarry license in favour of the petitioner. It is a well-

settled principle that if the statute requires a particular thing to be

done in a particular manner, then it shall be done either in that

manner or not at all.

(18 of 32) [CW-1344/2015]

37. On the other hand, the learned counsel for the Respondent -

State raised the preliminary objection that there was an alternate

remedy available to the petitioner against the order dated

31.08.1987 under Rule 43 of the Rules of 1986 but the petitioner

failed to exercise the alternate remedy. It is after 24 long years,

the petitioner had filed an appeal dated 07.04.2011 before

Additional Director (Mines), Mines and Geology Department,

Jodhpur Zone, Jodhpur, under Rule 43 of the Rules of 1986 against

the order of Mining Engineer, Jodhpur dated 13.08.2010 whereby

Quarry No. 576 was alloted in favour of Shri Dinesh Chandra,

Respondent No. 5.

The learned counsel for the Respondent - State further submitted

that the inordinate and unexplained delay on the part of the

petitioner for filing the appeal before the Appellate Authority in

itself is a sufficient ground for non-maintainability of the writ

petition.

38. The learned senior counsel for the private respondent

submitted that the public notice dated 21.06.1986 was published

in daily newspaper 'Jaltedeep', which was well known newspaper

of that time and also the Mining Engineer, Jodhpur was competent

authority to issue the said public notice.

39. The learned senior counsel for the private respondents also

submitted that the respondent submitted the application under the

Rule of 1986 and the petitioner submitted the application under

the Rules of 1977 and therefore, the question of differential fees

does not arose, the differential amount was supposewd to be paid

by the applicant who had applied under the Rules of 1977 and re-

(19 of 32) [CW-1344/2015]

applied under the Rules of 1986. And hence, it is not the violation

of Article 14 of the petitioner enshrined under the Constitution of

India.

40. The learned senior counsel for the private respondent further

submitted that that the Rules of 1986 came into force in

04.03.1986 and thereafter, a notification was issued by the Mining

Engineer, Jodhpur dated 19.06.1986 and a public notice was

published in the "Jaltedeep" daily newspaper dated 21.06.1986,

whereby it was notified that those who applied under the Rules of

1977 may apply within a period of 15 days under the Rules of

1986 and in case the said applications not received then an earlier

application shall stand rejected. The petitioner did not apply as per

the said public notice dated 21.06.1986, therefore, the petitioner's

applications was rejected. Hence, the petitioner cannot be allowed

to claim the benefit for his own wrong.

41. The learned senior counsel for the private respondents also

submitted that if it is assumed that the operation of the

Amendment Act to the Rules of 1986 is prospective, then also the

petitioner has no preferential right over the mining lease in

question because he has not submitted the application under the

Rules of 1986.

42. The learned senior counsel for the private respondents

further submitted that rejection order dated 13.08.1987 was sent

to the petitioner by the post and the post was never returned,

therefore, it was deemed to be communicated and delivered.

43. The learned senior counsel for the private respondent also

submitted that the petitioner did not apply under the Rules of

(20 of 32) [CW-1344/2015]

1986 but under the Rules of 1977. When the Rules of 1986 came

into force, the Rules of 1977 were repealed and hence, the lease

cannot be granted under the old Rules, i.e; the Rules of 1977.

44. The learned senior counsel for the private respondent further

submitted That at the time of passing the order dated 13.08.2010

by the Mining Engineer, Jodhpur, whereby the Quarry was alloted

to Shri Kailash Narayan Soni, there was no application of the

petitioner was pending. The application of the petitioner was

rejected in the year 1986, thereafter, the petitioner has not

submitted any application under the Rules of 1986 for the

allotment of the quarry.

45. The learned senior counsel for the private respondents

submitted that the right of the petitioner regarding the application

does not subsist now as the new rules have come into force in the

year 2017, named the Rajasthan Minior Mineral Concession Rules,

2017 (hereinafter referred to as 'Rules of 2017') and Rule 89 of

the Rules of 2017 clearly states that any and all applications

pending before the enforcement of these rules shall stand rejected

except the applications which fall under Rule 4 and Rule 5. The

Rule 89 and Rle 4 and 5 of the Rules of 2017 reads as follows:

89. Status of pending applications:

Notwithstanding anything contained in these rules, all the pending applications except saved under rule 4 and rule 5, on the date of notification of these rules shall be deemed to have been rejected:

Provided that on and after the commencement of these rules, all applications including those rejected under the Rajasthan Minor Mineral Concession Rules, 1986 or rejected under notification dated 3rd April

(21 of 32) [CW-1344/2015]

2013 or subsequently restored shall be deemed to have been rejected and such applicant shall have no locus standai under these rules.

4. Rights of a holder of a prospecting licence to obtain a mining lease: (1) A holder of a prospecting licence granted prior to commencement of these rules shall not have right of renewal but have preferential rights for obtaining a mining lease in respect of that mineral in that land, if the Government is satisfied that the licencee,-

(i) has undertaken prospecting operations to establish mineral resources in such land;

(ii) has not committed any breach of the terms and conditions of the prospecting licence;

(iii) is otherwise a fit person for being granted the mining lease; and

(iv) undertakes to pay premium amount equal to two and half times of the dead rent or as may be determined by the Government from time to time, which shall be payable every year in advance and shall not be adjusted against dead rent or royalty: Provided that premium amount shall stand revised automatically on enhancement of the dead rent of the lease and the lessee shall be liable to pay such enhanced premium.

Provided further that all the applications pending for renewal of prospecting licence on the date of commencement of these rules shall be deemed to have been rejected. Applicant of such application may apply for mining lease within a period of three months from the date of commencement of these rules. (2) An application for grant of a mining lease shall be submitted online by the licencee in Form -1 to the Mining Engineer or Assistant Mining Engineer concerned, with a non-refundable fee of rupees ten

(22 of 32) [CW-1344/2015]

thousand along with first installment, being twenty five percent of the premium amount, within a period of three months after the expiry of the prospecting licence.

(3) Every online application for grant of a mining lease shall be accompanied with scanned copy of following documents, namely:-

(i) a copy of PAN card, if the applicant is individual and copies of PAN card of all the partners, members or directors in case the applicant is a firm or association of person or company, as the case may be. Applicant shall also submit copy of TIN number in case of a partnership firm or association of persons or a company;

(ii) a copy of driving licence or passport or voter identification card or aadhar card for photo identity and address proof;

(iii) a copy of partnership deed and firm registration certificate in case of partnership firm issued under the Indian Partnership Act, 1932 or Limited Liability Partnership Act, 2008 or a copy of memorandum of association, articles of association and certificate of incorporation in case of company registered under the Companies Act, 2013;

(iv) a copy of resolution passed by the board of directors in favour of a person who is authorized to sign the application on behalf of the company;

(v) a copy of registered power of attorney in favour of a person who is authorized to sign the application, on behalf of the firm or association of persons where application is not signed by all the partners or persons as the case may be;

(vi) a copy of no dues certificate from the Mining Engineer or Assistant Mining Engineer, concerned, if the applicant or his/her family member holds or has

(23 of 32) [CW-1344/2015]

held any mineral concession or royalty or excess royalty collection contract in the State: Provided that such certificate shall also be furnished by all the members of association of person or all the partners of the partnership firm or all the directors of the private limited company, in case the applicant is a association of person or partnership firm or a private limited company as the case may be. A no dues certificate shall also be submitted by the company or undertaking in case of limited company or Government undertaking as the case may be. Provided further that where any injunction has been issued by the competent court or authority staying the recovery of the dues, non-payment thereof, shall not be treated as a disqualification for the grant of a mining lease.

Provided also that no dues certificate shall not be required where the applicant, partners of a firm, directors of the private limited company, members of association of persons, limited company or Government undertaking have furnished an affidavit to the satisfaction of the Government, stating that he/ she/it or his/her family member does not or did not hold any mineral concession, royalty or excess royalty collection contract in the State.

(vii) a copy of an affidavit giving particulars of areas already held by the applicant under mineral concession including the area held jointly with other persons, area applied but not granted and granted but not executed or registered;

(viii) e-mail address and mobile number of an individual or all members of association of persons or firm or all partners of the partnership firm or company or all the directors of the company or Government undertakings, as the case may be;

(24 of 32) [CW-1344/2015]

(ix) a recent passport size color photo of applicant and all the partners, members or directors in case the applicant is a firm or association of person or company, as the case may be;

(x) a copy of plan and description report of the applied area with latitude and longitude in WGS 84 Datum of all the corner pillars of the applied area; and

(xi) a copy of revenue details of the applied area with khasra naksha trace, khansra or araji number, jamabandi and extent of the area of the khasra or aaraji falling in the applied area along with superimposed map.

(4) The holder of such prospecting licence who has already made an application for the grant of a mining lease before commencement of these rules, shall not be required to submit a fresh application and his pending application shall be treated as an application made under this rule subject to payment of difference of application and premium amount as specified in sub-rule (2) within a period of two months from the commencement of these rules.

(5) Every application submitted under sub-rule (2) shall be acknowledged, in Form -2, online at the time of submission of application.

(6) Duly signed application along with self-certified documents as mentioned in sub-rule (3) shall be physically submitted to the Mining Engineer or Assistant Mining Engineer concerned, within a period of fifteen days from the date of its online submission and same shall be acknowledged by the office concerned.

(7) An application for grant of mining lease shall be disposed off by the competent authority as per the provisions of sub-rule (2), (3), (4) and (5) of rule 16

(25 of 32) [CW-1344/2015]

and the decision shall be communicated on registered address and e-mail of the applicant.

(8) Where it appears that the application is not complete in all material particulars or is not accompanied by the required documents, the competent authority shall reject the application and forfeit the application fees, premium amount and performance security deposited, after providing an opportunity of being heard by issuing notice of thirty days.

(9) Applications under this rule shall be disposed off, including execution and registration of mining lease, within a period of two year from the date of commencement of these rules or after expiry of the licence period, whichever later, failing which the right of such applicant shall be forfeited and in such cases, it would not be mandatory for the Government to issue any order in this regard.

5. Rights of a holder of letter of intent to obtain a mining lease: (1) Where the competent authority has issued a letter of intent before commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 for grant of a mining lease under the Mineral Concession Rules, 1960, notwithstanding anything contained in these rules, such application shall be considered as if received under these rules subject to payment of difference of application fee and premium amount equal to two and half times of the dead rent or as may be prescribed by the Government, from time to time, which shall be payable every year in advance and shall not be adjusted against dead rent or royalty. Such application shall be disposed off by the competent authority as per the provisions of sub-rule (2), (3), (4) and (5) of rule 16:

(26 of 32) [CW-1344/2015]

Provided that premium amount shall stand revised automatically on enhancement of the dead rent and the lessee shall be liable to pay such enhanced premium. Provided further that where letter of intent has been issued in khatedari land, registered consent deed of khatedar shall be submitted within a period of three months from the date commencement of these rules, if such consent deed is not submitted within a period of said three months, the application shall be rejected and application fees, premium amount and performance security deposited shall be forfeited, after providing an opportunity of being heard by issuing notice of thirty days.

(2) Where the letter of intent has been issued after determining premium through tender or auction under the Rajasthan Minor Mineral Concession Rules, 1986 notwithstanding anything contained in these rules, such application shall be considered as if received under these rules and shall be disposed off by the competent authority as per the provisions of subrule (2), (3), and (4) of rule 16:

Provided that such letter of intent holder shall deposit remaining amount of premium as per the conditions of notice inviting tender before execution of lease deed.

(3) Where it appears that the application is not complete in all material particulars or is not accompanied by the required documents, the competent authority shall reject the application and forfeit the application fees, premium amount and performance security deposited, after providing an opportunity of being heard by issuing notice of thirty days.

(4) All cases covered under this rule shall be protected subject to fulfillment of the conditions of the letter of intent within a period of one year from

(27 of 32) [CW-1344/2015]

the date of commencement of these rules and this period of one year shall include execution and registration of mining lease, failing which the right of such applicant shall be forfeited and in such cases, it would not be mandatory for the Government to issue any order in this regard.

46. The learned counsel for the respondents also submitted that

the order dated 31.08.2009 of the Mining Engineer, Jodhpur was

challenged before this Hon'ble Court in Om Prakash v. State of

Rajasthan, SBCWP 12919/2011, wherein the court observed

that:

"This Court is not hesitant in holding that in view of the order passed by this Court on 16.9.2009 in the earlier writ petitions preferred by the petitioners, no such ground is available to the petitioners in these writ petitions. When the petitioners have not challenged the order dated 16.9.2009 wherein this Court has held that while passing the order dated 31.8.2009, the Mining Engineer has complied with the directions given by the Dy. Secretary (Mines) on 17.12.2005 and the order of this Court dated 2.9.2003, it is not open for the petitioners to again raise this point which was ostensibly decided. In view of the above, the challenge to the order dated 31.8.2009 on the above ground is hereby rejected."

47. The learned counsel for the petitioner in the rejoinder

arguments submitted that the case cited by the learned

counsel of the respondent does not have same facts and in

the above cited case, the petitioner has himself waived and

forfeited his rights as regards to the application dated

28.12.1983 as the petitioner in the SBCWP 12919/2011,

applied again in the year 1996 under the new rules and

(28 of 32) [CW-1344/2015]

hence his old application under the Rules of 1977 stands

waived.

48. The learned senior counsel for the private respondents

further submitted that the letter dated 11.09.1986 by the

Director, Department of Mines and Geology, Rajasthan to the

Mining Engineer, Jodhpur in which he stated that all the

pending applications under the Rules of 1977 shall be

deemed to be rejected by refunding application fee and

action may be taken for allotment according to new rules is

applicable upon the applications of the petitioner and also

the order dated 31.08.1987 by the Mining Engineer, Jodhpur

rejecting all the applications pending under the Rules of

1977 was sent to the petitioner through general post.

49. The learned senior counsel for the respondents also

submitted that the petitioner has no preferential rights by

the virtue of order passed by the Deputy Secretary, Mines,

dated 29.03.2001 and the preferential rights were only

applicable to the applicants who applied again under the

Rules of 1986 and the petitioner did not do so.

50. Heard the learned counsels for both the parties and

perused the record of the case as well as the judgement

cited at the bar.

51. This court observes that the petitioner's application

dated 28.12.1983 was rejected by the order dated

31.08.1987 and the petitioner failed to avail the remedy of

appeal against above mentioned rejection under Rule 43 of

the Rules of 1986 and no reason whatsoever has been

(29 of 32) [CW-1344/2015]

assigned for not availing the statutory remedy under Rule 43

of the Rules of 1986. Rule 43 of the Rules of 1986 reads as

follows:

43. Appeal. - (1) Any person aggrieved by any order of the Superintending Mining Engineer, Superintending Mining Engineer (Vigilance), Mining Engineer (Vigilance), Mining Engineer [Assistant Mining Engineer or Assistant Mining Engineer (Vigilance)] passed under these rules shall have the right of appeal to the Director.

(2) Any person aggrieved by any order passed in appeal under sub-rule (1) or any other order passed by the Director under these rules shall have the right of appeal to the Government.

(3) Any person aggrieved by any order of the Director by virtue of the powers delegated or otherwise exercised under these rules on the matters mentioned in sub-rule (1) shall have the right of appeal to the Government.

(4) The orders passed by the Government in appeal shall be final.

52. This court also observes that the petitioner's plea that

his application dated 26.12.1983 was still pending with the

respondent is not sustainable as the same was rejected vide

order dated 31.08.1987 and therefore, the application dated

26.12.1983 ceased to exist.

53. The Court further observes that no approval has ever

been issued in favour of the petitioner for the Quarry No.

576, due to which the petitioner had no right over the quarry

license in question. The petitioner had not been a party to

the case before any court, therefore, no right is established.

This court in SBCWP 1886/2011 had vide order dated

(30 of 32) [CW-1344/2015]

01.03.2011 held that mere submitting of an application does

not create any right in favour of the applicant.

54. This court also observes that Shri Kailash Narayan Soni

had applied on 27.12.1987 and Shri Dinesh Chandre had

applied on 18.12.1992 and on the basis of priority in view of

the order dated 29.03.2001 passed by the Deputy Secretary,

Department of Mines, Government of Rajasthan, and the

judgement dated 19.04.2010 by this court, thus, the

allotment order dated 03.04.1998 in favour of Shri Kailash

Narayan Soni, mine No. 576 was cancelled. The private

respondent Shri Dinesh Chandra was granted approval as per

the rules vide order dated 13.08.2010,against which the

petitioner filed an Appeal No. 76/2011 before the Additional

Director, Department of Mines, Jodhpur, which was dismissed

as per the rules by order dated 17.07.2012.

55. This court further observes that the contentions of the

petitioner that the private respondent has been wrongly

alloted the mines in question is also not sustainable as the

petitioner has utterly failed to demonstrate the violation of

any provision of law/rules on the part of the respondent

while alloting the mine is dispute in favour of the private

respondent. It is also an admitted fact that the private

respondent moved an application under the Rules of 1986

and the petitioner had moved an application under the Rules

of 1986 and the petitioner had moved an application under

the Rules of 1977 dispute the fact that vide public notice

dated 19.06.1986 an opportunity was given by the

(31 of 32) [CW-1344/2015]

respondent state to submit fresh application but the

petitioner chose not to submit, thus the consideration of the

applications of the petitioner and the private respondent

cannot be said to be at par with each other.

And, also the petitioner chose not to challenge the order

dated 11.09.1986 and the order dated 31.08.1987 passed by

the Mining Engineer by which his application and the claim

was rejected and rather challenged only the order dated

13.08.2010 by which the private respondent has been

alloted. The petitioner has slept over his rights for a period

of more than 24 years and thus the writ petition deserves to

be dismissed on the ground of delay and laches.

56. The court further observes that after the promulgation of

the Rules of 2017, Rule 89 states that all the pending

applications under the old rules shall stand rejected except

which are saved by Rule 4 and 5 of the Rules of 2017 and it

is apparent from the reading of Rule 4 and 5 of the Rules of

2017 that the petitioners's case does not fall under the

saving clause of aforementioned rules. The submission made

by learned counsel for the petitioners that the applications

are still pending consideration with the respondents is not

acceptable as firstly, the applications were rejected way back

vide order dated 31.08.1987 passed by the Mining Engineer,

Jodhpur, and secondly, if the submission of the learned

counsel for the petitioners is accepted that the applications

were pending, then too after the Rules of 2017 came into

force, the applications stood rejected in light of Rule 89 of

(32 of 32) [CW-1344/2015]

the Rules of 2017. Therefore, when there were no

applications of the petitioners pending before the

respondents for allotment of the mining lease in question,

then there is no occasion for the respondent to grant the

mining lease in favour of the petitioners.

57. This court is of the view that the contention of the

petitioner that the order dated 31.08.1987 must have been

passed by the State Government is also not sustainable as

the petitioner has failed to point out the relevant provision of

law which mandates only the State Government to pass such

an order.

58. In light of the aforesaid observations, these writ

petitions viz. SBCWP 1344/2015, SBCWP 1342/2015

and SBCWP 1343/2015 are dismissed being bereft of

merit and all pending applications stand dismissed.

(DR. NUPUR BHATI),J 40-/skm/-

Powered by TCPDF (www.tcpdf.org)