1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Duda Ram & Ors. v. State of Rajasthan & Ors. D. B. CIVIL WRIT (PIL) PETITION NO.1258/2009 under Article 226 of the Constitution of India. Date of Order :: 07/08/09 P R E S E N T HON'BLE MR.JUSTICE N.P.GUPTA HON'BLE MR.JUSTICE GOVIND MATHUR Mr. SP Sharma, for the petitioners. Mr. GR Punia, Additional Advocate General. Mr. Vishal Sharma, for the respondents. .... BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.) The six petitioners, all residents of village Litariya, Gram Panchayat Kanecha, have preferred this petition, said to be in public interest to challenge the order dated 28.7.2008 issued on behalf of the State Government granting sanction to issue no objection for granting 9.94 hactres of land out of 233.02 hactres of land in khasra No.73 for mining purpose. A challenge is also given to the order dated 3.10.2008 issued by the Collector, Pali which is a consequent to the order dated 28.7.2008. The contentions advanced by counsel for the petitioners are that :- 2 (1)the provisions of the Rajasthan Tenancy Act, 1955 and the Minor Mineral Concession Rules, 1986 put restrictions for use of gochar land for any other purpose than grazing of pet animals and so also to wild animals, who are dependent for their survival on the gochar land and in the present case a part of gochar land is granted to respondent No.9 i.e. M/s Rajasthan Clay, Sojat City for mining purposes; (2)the gochar land wherein mining operations are permitted is the catchment area for local ponds, reservoir and as such the same shall adversely effect the interest of public at large and also that at about 3000 cows and other pet animals who are dependent for their survival on the gochar land shall not be having sufficient area for their grazing; (3)despite the order dated 30.3.2005 passed by this Court in SBCivil Writ Petition No.1811/2005, restraining the State Government and its functionary from granting mining lease in the gochar land of village Litariya, the respondents have permitted mining operations to the respondent No.9; and (4)the Gram Panchayat Kanecha granted No Objection Certificate for grant of mining lease to the respondent No.9 for excavating clay without inviting objections and without affording hearing to the residents of village Litariya. 3 The State Government and its functionaries have filed a reply to the writ petition stating therein that the mining lease was granted to the respondent No.9 after following due process of law and before doing so the Gram Panchayat Kanecha issued a No Objection Certificate after inviting objections under a public notice dated 6.11.2007 and also after making adequate inquiry. As per the respondents, in pursuant to the notice dated 6.11.2007 no one raised any objection regarding issuance of No Objection Certificate for mining operations in 9.94 hactres of land out of 233.02 hactres of land in khasra No.73 of village Litariya. The Gram Panchayat, Kanecha also filed a separate reply to the writ petition with assertion that “before giving NOC the process was duly followed and Gram Panchayat initiated the proceedings and the objections were invited no objection was received from any resident of the village area the petitioners were also having knowledge of the proceeding going on in the Gram Panchayat and never objected the same. The Gram Panchayat rightly granted the NOC after considering all aspects of the matter. The Annex.1 itself clearly shows that every aspect of the matter was taken into consideration and the conditions were also imposed on respondent no.9. Looking to the interest of the villagers as much as 8 conditions were 4 imposed inter-alia that for the purpose of development of the pasture land the respondent no.9 shall deposit one lakh rupees in favour of the village Panchayat. The firm has also been directed not to dump the waste material except on the specified area. It was also directed that the villagers should be given priority in employment in the mining area. All the rights have also been reserved with the village Panchayat”. The Gram Panchayat in its reply also stated that the land situated in khasra No.73 of village Litariya is not a fertile land and its surface is very hard which does not yield any grass or any other kind of vegetation. It is also stated that the area allowed for mining purposes is not the catchment area for any pond or tank of village Litariya. The respondent No.9, to whom mining area is allotted for excavating clay, in its reply stated that “Gochar and Pasture land can be allotted and such NOC can be granted under certain rules and regulations, the restrictions mentioned in rule 4 sub rule 5 of the MMCR 1986 is not applicable in this case and the answering respondent has not violated any restrictions of such nature. The section 16(1) of the Rajasthan Tenancy Act, 1955 may be prohibiting Khatedari rights but here it is not a question of obtaining khatedari rights and therefore such law is not applicable and has been mentioned only to mislead this Hon'ble Court. 5 The mining department has carefully gone through the complete record and after due application of mind and carefully going through the stipulated procedure the mining department has issued such lease as the answering respondent was asked very many queries and had to cooperate at so many stages which the department went through in accordance with law”. All the respondents have doubted bonafides of the petitioners by alleging that no cause is agitated which may be in public interest, but as a matter of fact the petitioners in the name of public interest want to take benefit in SBCivil Writ Petition No.1811/2005 and also that the petitioner No.1 committed offence of theft of woods in the area in question and a criminal case (FIR No.24/2009) was registered against him for the offence punishable under Sections 447, 379 IPC. As per the respondents the conduct of the petitioners reflects that in the name of public interest they desire to continue their illegal activities in the area concern. In rejoinder, the petitioners while reiterating the averments made in petition for writ, stated that in village Litariya there are 284 Sheep, 431 Goats, 367 Cows and 137 Buffaloes and for these cattle adequate pasture land is necessary. Heard learned counsel for the parties. 6 It is not in dispute that in the instant matter the permission for allotment of 9.94 hactres of land out of 233.02 hactres of land in khasra No.73 of village Litariya is granted by the State Government for mining operation and for that the Rajasthan Tenancy Act, 1955 permits. The restriction imposed is that where area of the land sought to be allotted or set apart exceeds 4 hactres, the Collector is required to obtain prior permission from the State Government. The State Government, therefore, is having power to allot or set apart the pasture land beyond the extent of 4 hactres. No error, therefore, in the present case is committed by the State Government while issuing order impugned dated 28.7.2008. In a quite bald manner the petitioners have stated that the area in question is serving as catchment for providing rain water to ponds, reservoirs and canals of the area of village Litariya. No details with regard to any pond, reservoir or canal is given in petition for writ. On basis of such incomplete and vague averments, no adjudication can be made, specially in the circumstances that the respondents have taken a specific stand that the area consisting of khasra No.73 is not a catchment area for any water body. The petitioners also stated in petition for writ that the area in question is used for grazing by 3000 cows of village Litariya, however, in rejoinder to the reply filed on behalf of the 7 respondent No.5, an exact number of pet animals in village is given and according to that total number of cattle is 1219 including 284 Sheep, 431 Goats, 367 Cows and 137 Buffaloes. The discrepancy in the facts placed on record depicts the casual approach of the petitioners in pressing the contentions in service. We also do not find any force in the argument that the Gram Panchayat Kanecha granted No Objection Certificate for mining operations without inviting objections and without affording hearing to the persons effected. It is relevant to note that during the course of arguments, on asking by us, learned counsel for the petitioners utterly failed to point out any provision making it necessary for Gram Panchayat to invite public objections before granting no objection. Be that as it may, in the instant case the Gram Panchayat came forward with a specific case that a public notice was issued by it and in response thereto no one opposed for the issuance of No Objection Certificate for mining operations by the respondent No.9. So far as the interim order granted by this Court in the case of Gordhan Ram, SBCivil Writ Petition No.1811/2005 is concerned, that is relating to khasra No.197 and not for khasra No.73 in village Litariya. The operative portion of the interim order referred above is as follows:- 8 “Meanwhile, the respondents no.1 and 2 shall not grant mining lease in favour of respondents no.3 and 4 on the basis of the no objection certificate issued by the District Collector (Annexs.7 and 8) and respondents no.3 and 4 shall not undertake any mining operation in the pasture land for which they obtained the no objection certificates (Annexs.7 and 8).” Beside whatever said above, without making any comment regarding bonafides of the petitioners, as the petitioner No.1 is facing a criminal charges for theft in the same area, the petitioners do not bear our confidence and we are having our doubts regarding genuineness of the public interest said to be agitated in the instant matter. Accordingly, this petition for writ is dismissed, however, it is made clear that dismissal of this petition for writ shall having no adverse effect on the rights and issues those are under adjudication in SBCivil Writ Petition No.1811/2005. ( GOVIND MATHUR ),J. ( N.P.GUPTA ),J. kkm/ps.