Tuesday, December 4, 2018
Rajasthan High Court
CW Case No. 9000 of 2011 (27 Feb, 2017)
1. This petition is directed against the order dated 9.6.11 of the Revisional Authority, whereby a revision petition preferred by the petitioner under section 30 of the mines and minerals (development and regulation) act, 1957 (for short the mmdr act) and rule 55 of the mineral concession rules, 1960, against the order dated 1.10.08 passed by the State Government, rejecting the application dated 28.9.06 for grant of mining lease for minerals feldspar and quartz over an area of 4.75 hectares (2 of 6) [CW-9000/2011] near village Dhanin, Tehsil Kumbhalgarh, District Rajsamand, Rajasthan, stands rejected.
2. Admittedly, an application preferred by the petitioner seeking grant of mining lease was rejected on the ground that the mining area falls within the pasture land and the petitioner was not able to obtain No Objection Certificate (NOC) of the District Collector, Rajsamand in this regard, which is mandatorily required. The Revisional Authority has affirmed the order passed by the State Government rejecting the application, seeking grant of mining lease observing that despite lapse of more than one year from the date of making first reference and despite several reminders, the petitioner could not produce the NOC and therefore, there was no other option but to reject the ML application.
3. Learned counsel appearing for the petitioner submits that the petitioner has applied for NOC and if the District Collector, the authority competent, did not issue the NOC as required, there being no default on the part of the petitioner, he cannot be penalised.
4. On the other hand, learned Deputy Government Counsel submits that nobody can claim mining lease in respect of land which forms part of pasture land as a matter of right and thus, in absence of NOC being issued by the District Collector, who is competent authority in the matter, the rejection of the application preferred by the petitioner seeking mining lease cannot be faulted with. (3 of 6) [CW-9000/2011]
5. I have considered the rivals submissions and perused the material on record.
6. Indisputably, mining activities in pasture land is prohibited under the law. Nobody can claim right to excavate the mineral from the pasture land as a matter of right. The diversion of use of pasture land for any other purpose is governed by rule 7 of the rajasthan tenancy (government) rules, 1955, framed by the State Government.
7. As a matter of fact, the matter with regard to grant of mining lease in respect of land forming part of pasture land has been dealt with by a Bench of this Court in the matter ofJetha Ram and Ors. Vs. State of Rajasthan and Ors. 2012(3) WLN 185 (Raj.), wherein after due consideration of various relevant provisions, this Court held as under :
9. 'Pasture land' as defined by section 5(28) of rajasthan tenancy act, 1955 ('the act of 1955') shall mean land used for grazing of the cattle of a village or villages or recorded in settlement records as such at the commencement of the Act or thereafter reserved as such in accordance with the Rules framed by the State Government. As per provisions of Section 92 of the Rajasthan Land Revenue Act, 1956( for short "the Act of 1956"), subject to general or special orders of the State Government, the Collector may set apart land for any special purpose such as for free pasturage of cattle, for forest reserve, for development of abadi or for any other public or municipal purpose and such land shall not be used otherwise than for the purpose without the previous sanction of the Collector. Section 16 of the Act of 1955 prohibits accrual of (4 of 6) [CW-9000/2011] khatedari rights in pasture land. rule 4 of rajasthan land revenue (allotment of land for agriculture purposes) rules, 1970 which specifies the categories of the land not available for allotment for agriculture purposes includes the lands mentioned in Section 16 of the Act of 1955 which includes the pasture land as aforesaid. 10.section 93 of act of 1956 mandates that the right of grazing on pasturage land shall extend only to the cattle of the village or villages for which such land has been set apart and shall be regulated by the Rules made by the State Government.
11. As per rule 7 in chapter ii of rajasthan tenancy (government) rules, 1955,incorporated to give effect to the provisions of Section 5(28) of the Act of 1955, the Collector is empowered to change the classification of any pasture land as defined u/s 5(28) or any pasture land set apart u/s 92 of the Act of 1956 as unoccupied culturable government land (Siwai Chak), for allotment for agriculture or any non agricultural purposes. However, as per First proviso to Rule 7 in case where land sought to be allotted or set apart exceeds
4 hectares, the Collector is under an obligation to obtain prior permission of the State Government. Sub-rule(2) of Rule 7 mandates that where classification of any pasture land is changed under sub-rule (1) , the Collector may set apart an equal area of unculturable government land if available as pasture land in the same village.
12. Coming to the Mining Laws, indisputably, as per provisions of Section 4 of the Act of 1957, no person can undertake any mining operation in any area except under and in accordance with the terms and conditions of mining lease granted. It is also not in dispute that the 'Bazari' is a minor mineral which squarely falls within the provisions of the Act of 1957 and the Rules made thereunder. By virtue of Section 15 of the Act of 1957, the State Government is empowered to (5 of 6) [CW-9000/2011] make Rules in respect of minor minerals. In the State of Rajasthan , the State Government in exercise of the power conferred u/s 15 of the Act of 1957 has framed the MMCR,1986, which regulates the grant of quarry licenses, mining leases and other mineral concessions in respect of minor mineral and for the purposes connected therewith. As per sub-rule (5) of rule 4 of mmcr,1986 , no mining lease could be granted or renewed in respect of lands notified by the government as reserved for use of the government or local authorities or for any public or special purpose. Indisputably, 'Bazari' is a minor mineral and the land in question being a pasture land set apart for grazing of the cattles of the villages concerned, it is not open for the mining authorities to grant the mining lease for the excavation of the mineral 'Bazari' from the said land.
13. Suffice it to say that the pasture land is meant for grazing of the cattles of the village or villages and once the land is categorized as pasture land , it cannot be divested to use for any other purposes including the mining operation unless and until in the special circumstances, its classification as pasture land is changed by the competent authority in accordance with the procedure laid down under the relevant Statutes. Further, it is statutory obligation of the state authorities to ensure that the land set apart for pasturage is not divested to be used for any other purpose unauthorisedly. The livelihood of large number of villagers is dependent on the livestock and therefore, it is the bounden duty of the state authorities to preserve, develop and manage the pasture land in a manner which ensures therein the vegetation in abundance to feed the livestock. Needless to say that if illegal mining and other such activity in the pasture land is not viewed seriously and dealt with sternly by taking appropriate measures, pasture land will be fragmented and deteriorated and ultimately, will be destroyed, frustrating the very purpose of setting apart the land as pasturage.
8. That apart, relying upon the directions issued by the Hon'ble Supreme Court in the matter of Jagpal Singh & Ors. Vs. State of Punjab & Ors. (2011) 11 SCC 396, the State Government has issued a circular dated 25.4.11 putting restriction on allotment of pasture land for any other purpose.
9. In view of authoritative pronouncement of this Court and the Honble Supreme Court, the question of allotment of mining lease in the pasture land does not arise.
10. In this view of the matter, the order passed by the Revisional Authority does not warrant any interference by this Court in exercise of its extraordinary jurisdiction underarticle 226 of the constitution of india.
11. In the result, the petition fails, it is hereby dismissed. (SANGEET LODHA)J.
Source : https://www.casemine.com/judgement/in/590494474a9326701a5f2862