Jeeva Ram Vs. State of Rajasthan and ors. - Court Judgment

R.R. Yadav, J.

1. Petitioner has filed the instant writ petition for quashing the order dated 19.10.1987 Annx. 3 to the writ petition passed by the Tehsildar, Bhinmal District Jalore (respondent No. 3.)

2. Facts of the Present case are not disputed upto this extent that the petitioner was granted a short term permit under Rule 63 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as 'the Rules of 1986') by the Mining Engineer, Sirohi for extracting and removing 200 tonnes of earth clay from Khasra No. 261 of village Tawab, District Jalore for which he had paid Rs. 300/- at the rate of Rs. 1.50 per ton, photostat whereof is filed and marked as Annx. 1 to the writ petition.

3. I have heard learned Counsel for the petitioner Mr. M.L. Shreemali as well as learned Counsel appearing on behalf of respondent No. 1 Mr. R.L. Jangid and learned Government Advocate appearing on behalf of respondents No. 2 and 3 Mr. S.K. Vyas.

4. It is argued by the learned Counsel for the petitioner Mr. M.L. Shreemali that it is inconceivable that a person who has been granted short term permit under Rule 63 of the Rules of 1986 to quarry the brick earth has no right to construct the kiln to utilize the mineral for the purposes of making bricks. In support of his contention, learned Counsel for the petitioner placed reliance on a decision rendered by Division Bench of this Court in case of Shiv Chand v. State of Rajasthan reported in 1966 ILR (Raj) 1063.

5. Learned Counsel appearing on behalf of respondent No. 1 Mr. R.L. Jangid strenously urged before me that short term permit dated 10.2.87 Annx. 1 to the writ petition was issued by the Mining Department which did not authorise the petitioner to use clay for the purpose of making bricks but it was subject to the provisions contained under Sub-section (7) of Section 89 of Land Revenue Act.

6. Argument advanced by Mr. R.L. Jangid, learned Counsel appearing on behalf of respondent No. 1 is adopted by Mr. S.K. Vyas, learned Counsel appearing on behalf of respondents No. 2 and 3.

7. I have given my thoughtful consideration to the rival contentions raised at the bar and also examined the materials available on record.

8. I am of the view that the provisions envisaged under Sub- Section (7) of Section 89 of the Rajasthan Land Revenue Act have nothing to do with the mining lease granting to the petitioner in the present case. I am not able to subscribe the view that the power of granting lease to the petitioner vide Annx. 1 for minor mineral removing the clay by the Mining Department is subject to the provisions of Sub-section (7) of Section 89 of the Rajasthan Land Revenue Act, which provide that 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 him, he would be liable on the order in writing of the Collector to pay penalty not exceeding a sum calculated at the rate of Rs. 50/- per ton or a portion thereof of the minerals so extracted or removed. An explanation is also added to the aforesaid Sub-section (7) of Section 89 of the Rajasthan Land Revenue Act, which reads thus:

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.

9. In my considered opinion, the grant of a mining lease is a concern of the Government or the officers of the Mines and Geological Department as specified in Schedule HI and such mining lease can be granted to the petitioner under the Rules of 1986 and grant of such lease is not subject to any other law. The mandatory provision contemplated under Section 19 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as 'the Act of 1957') leads towards an irresistible conclusion that there is a clear bar for grant of minerals in any other manner except under the Rules of 1986 made under the aforesaid Act. It is to be noticed that Section 19 of the Act of 1957 clearly provides that any mining lease granted, renewed or acquired in contravention of the provisions of that Act or any Rules or orders made thereunder shall be void and of no effect. Similarly, Rule 3(vii) of the Rules of 1986 clearly defines the 'brick earth' which means earth used for making bricks, Kavelus and earthen pots and shall also include all types of earth used for construction of Dams, Canals, Roads, Rail embankment and other identical purposes.

10. Argument of learned Counsel for respondent Mr. R.L. Jangid gives an impression as if the validity of short term permit/lease Annx. 1 granted to the petitioner cannot be upheld without disobeying the provisions contemplated under Sub-section (7) of Section 89 of the Rajasthan Land Revenue Act. Suffice it to say in this regard that the Rajasthan Land Revenue Act has been passed by the State Legislature while Act of 1957 has been passed by the Parliament. Assuming for sake of argument that the contention raised by Mr. R.L. Jangid, learned Counsel for respondent No. 1 is correct even then in case of inconsistency between the Rajasthan Land Revenue Act passed by the State Legislature and Act of 1957 passed by the Parliament, the latter would prevail over the former for the reason that the 'minerals' find place at item No. 54 of the Union List of Seventh Schedule, upon which, only Parliament has exclusive power under the Constitution of India to legislate upon and matter enumerated under the Union List are beyond the legislative competence of the State Legislature. Similarly, the Legislature of State has exclusive legislative power to enact upon the items enumerated under State List of Seventh Schedule of the Constitution. It is true that as regards concurrent list Parliament as well as Legislature of States both are competent to legislate upon the items enumerated thereunder subject to mandatory provisions contained under Article 254 of the Constitution.

11. The next question would arise if it is so then how the Rules of 1986 under which the petitioner has been granted a short term permit can be permitted to be held to be valid. Reasons are not far to seek as the Rules of 1986 are framed by the State Govt. within the meaning of Section 15 of the Act of 1957 passed by the Parliament delegating the powers to the State Govt. to make Rules in respect of minor minerals, therefore, the validity of the Rules of 1986 are saved.

12. It is hereby made clear that in view of the fact that the writ petition is being allowed and interim order dated 11.11.1987 has been modified in this case by a Division Bench of this Court vide order dated 11.12.1987 to the effect that the bricks which are under attachment and are not in possession of the police in connection with the criminal case, may be handed-over to the petitioner on his giving a solvent security for value thereof to the satisfaction of the Tehsildar, Bhinmal, District Jalore. The solvent security so furnished by the petitioner is discharged. It is further made clear that if any criminal proceedings are pending against the petitioner for breach of provisions of Rajasthan Land Revenue Act contrary to the terms and conditions of short term permit issued to him under Rule 63 of the Rules of 1986 Annx. 1 to the writ petition shall also be deemed to be quashed.

13. As a result of the aforementioned discussion, the order passed by the Tehsildar, Bhinmal district Jalore. on 19.10.1987 Annx. 3 to the writ petition is hereby quashed and the writ petition is allowed. Both the parties are hereby directed to bear their own costs.