SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {1} IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT 1. SB Civil Writ Petition No.5894/2005 Sanjay Sukhadia vs. State of Rajasthan & Ors. 2. SB Civil Writ Petition No.4098/2005 Rameshwar Nawal vs. State of Rajasthan & Ors. 3. SB Civil Writ Petition No.4382/2005 Smt. Suman Nawal vs. State of Rajasthan & Ors. 4. SB Civil Writ Petition No.4383/2005 Smt.Parwati Digarwal vs. State of Raj. & Ors. 5. SB Civil Writ Petition No.4808/2005 Sama Ram Rathore vs. State of Rajasthan & Ors. DATE OF JUDGMENT ::: May 28th, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.M.Mridul,Sr.Adv. a/w Mr.PS Chundawat & Ms.Vandana, for the petitioners. Mr.NM Lodha, AAG ) for the respondents. Mr.V Bishnoi ) Mr.DD Thanvi ) - - - - - BY THE COURT : REPORTABLE Heard learned counsel for the parties. The main grievance of all above petitioners in the above writ petitions is that in the Granite Policy, 1995 framed by the State Government in SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {2} exercise of the powers conferred by Rule 65A of the Rajasthan Minor Mineral Concession Rules, 1986 (for short 'the Rules of 1986'), as amended in 1996 and in the Granite Policy, 2002 the State Government declared that 20% of the plots for excavation of granite shall be kept reserved for the persons of Scheduled Castes and Scheduled Tribes, yet even after more than a decade, have not implemented the said policy and consequently have not allotted a single granite mine to any of the members of Scheduled Caste and Scheduled Tribe. Before these writ petitions, D.B. Civil Writ Petition No.7078/2003 was filed in this Court wherein the Division Bench of this Court vide order dated 11.3.2004 directed the State Government to delineate and demarcate the plots which are reserved for the persons belonging to Scheduled Caste, Scheduled Tribe and Other Backward Classes, within a period of ten weeks. Inspite of said positive direction to the State Government, the respondents are granting the mining leases for the granite area to all other persons other than the members of Scheduled Caste, Scheduled Tribe and Other Backward Classes. According to the petitioners, the State Government in the matter of grant of mining lease for excavation of valuable granite is not SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {3} following and implementing its own policy decision and also flouting the orders of the Division Bench of this Court. So far as the other reliefs are concerned, they are relief for individual petitioner and for consideration of their application for allotment of mining lease. It would be appropriate to look into various provisions of laws under the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the Act of 1957') and the Rules framed by the State Government in exercise of the powers conferred under Section 15 of the Act of 1957 which are the Rules of 1986 and particularly, Rule 65A of the Rules of 1986 and the Granite Policies declared by the State Government in the year 1991, 1995 and amendment of 1996 introducing the reservation in the matter of grant of granite lease to the persons of various categories ; and Granite Policy, 2002 framed by the State Government. Section 15 of the Act of 1957 empowers the State Government to frame the Rules for the purpose of grant of mining leases of various categories to the persons in the State of Rajasthan. Though Sub-Section (1) of Section 15 is SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {4} wide enough to cover almost all subjects for which the State Government may frame the Rules for regulating the quarry leases, mining leases or other mineral concessions in respect of other purposes and for the purposes connected therewith. As stated above, in exercise of the powers conferred by Section 15 of the Act of 1975, the State Government framed the Rules of 1986 and repealed the earlier framed Rules of 1977. Under the Rules of 1986, for grant of mining leases, the provisions have been made under chapter-II of the Rules of 1986. As per Rule 4 of the Rules of 1986, it has been laid down that no mining leases shall be granted in respect of such mineral/minerals as Mining Engineer or Assistant Mining Engineer may notify in this behalf within his jurisdiction with the approval of the Director and it is provided that no mining lease shall be granted to a person who is not a citizen of India unless prior approval of the Government of India has been obtained. As per the said Rule 4, the mining lease can be granted only if the area is notified by the Mining Engineer/ Assistant Mining Engineer with the approval of the Director. In the matter of grant of mining lease as per Rule 7, when two or more persons apply for mining lease in respect of the same area, the applicant whose application was SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {5} received on earlier date shall have a preferential right for the grant of lease over the applicant whose application was received later. Exception to this general rule, as provided in Sub-Rule (1) of Rule 7, is given under the Proviso to Sub-Rule (1) of Rule 7 and under Sub-Rules (2) and (3) of Rule 7. The area and period to the extent of which mining lease can be granted is provided under Rules 11 and 16 of the Rules of 1986. Apart from the grant of leases, the provisions for grant of Quarry licenses have been made under Chapter-III of the Rules of 1986. Under Rule 73, a provision has been made for reservation of the area for prospecting or mining operations by the State Government. Rule 73 provides that where the Government proposes to undertake prospecting or mining operations of any mineral, it shall issue a notification reserving the area, in at least one daily newspaper having wide circulation in the State as well as in one such daily newspaper having wide circulation in the locality nearest to the area in question. In the notification, details of the area and period for which such operations are proposed to be undertaken, are required to be given. Even when detail Rules have been framed for regulating the grant of various leases in respect SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {6} of the minor minerals, yet Rule 65A was inserted with effect from 20.12.1991 to give power to the State Government to adopt any method or procedure different from the procedure that is provided in the Rules, obviously in the Rules of 1986. Rule 65A reads as under :- “65-A. Grant of mining leases by adopting procedure different from the given in the Rules.-Notwithstanding anything contained in these rules, Government may, by notification in the Rajasthan Gazette or atleast one daily newspaper having wide circulation in the State as well as one newspaper having wide circulation in the locality nearest to the area in question, adopt any method or procedure different from that provided in the rules for leasing out mineral deposit in the interest of mineral development.” In exercise of the powers conferred by Rule 65A, the State Government decided to introduce the Granite Policy, 1991 in interest of mineral development. In the Granite Policy, 1991, it was provided that the survey for existence of mineral will be made by the field officers and after the report of the Geologist in regard to the availability of the granite mineral in the concerned areas, the delineation and demarcation SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {7} of the plots will be made and thereafter, the mining leases were to be allotted after inviting application as per the Granite Policy, 1991. In this policy of 1991, there was no reservation of mining area or mining plots for the members of SC/ST. However, as per Para 6 of the Granite Policy, 1991, pending applications were to be decided as per the policy in force at the time of submitting the application and the application covered by sub-clause (ii) are to be decided by the Policy of 1991. Granite Policy, 1991 was superseded by the Granite Policy, 1995 with effect from 18.1.1995. In the Granite Policy, 1995, the provisions for allotment of the mining lease were made under different categories as provided in Clause 4 of the said policy. The grant of mining lease could have been only after the delineation and demarcation of the plots because as per clause (1), delineation is condition precedent for notifying the plots for grant of mining lease and following the provision of delineation provided by Clause (1), in clause (4) also, it has been provided that the plots to the persons of different categories shall be allotted after they are delineated and obviously are notified. In Clause (6) of Granite Policy, 1995, provisions SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {8} were made in regard to grant of those plots which were earlier delineated under Granite Policy, 1991 but were remained vacant or revoked. Such plots were made available for allotment under Granite Policy, 1995 after re-delineation as per the provisions made under Clause (6) of Granite Policy, 1995. In the Granite Policy, 1995, there was no reservation for the members of Scheduled Castes and Scheduled Tribes and, therefore, by amendment dated 20.2.1996, sub-clause (5) was added providing reservation of 20% of the plots for the members of Scheduled Castes and Scheduled Tribes. It will be worthwhile to mention here that a provision also has been made providing that if any person personally intimates in writing to the Director of Mines and Geology or any other officer authorised by him on his behalf about search and occurrence of a new granite deposit in the Government land and furnishes the location map of the granite deposit, the mining lease may be granted to him on preferential basis after delineation of plots in the area. The grievance of the petitioners, as stated above, is that not a single plot in the entire State of Rajasthan has been allotted to any member of Scheduled Caste and Scheduled Tribe inspite of SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {9} the Government's own decision under the Policy of 1995 that 20% of the plots shall remain reserved for the members of Scheduled Castes and Scheduled Tribes where granite is to be excavated. The Granite Policy, 1995 continued till it was superseded by new Granite Policy, 2002 which was introduced on 2.3.2002 but without any benefit to the members of Scheduled Castes and Scheduled Tribes till new policy came into force. More unfortunate is that even after keeping reservation of 20% of the mining plots for allotment to the members of Scheduled Castes and Scheduled Tribes in the Granite Policy of 2002, the State Government has not only not allotted a single plot to the members of Scheduled Castes and Scheduled Tribes as reserved plot but the State Government has started granting granite mining lease without delineating the mining plots and has not declared and notified the plots reserved for the members of the SC/ST. Shocking is this that no plot has been reserved and almost all granite leases have been granted by the State Government inspite of the fact that the petitioners raised their grievance continuously and ultimately, the grievance was raised by the petitioners of DB Civil Writ Petition No.7078/2003 wherein the Division Bench of this Court in its order dated 11.3.2004 after SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {10} observing that it is not in dispute that even in the Granite Policy, 1995, 20% of the delineated plots were required to be reserved for the persons of Scheduled Castes, Scheduled Tribes and Other Backward Classes and held that under Granite Policy, 2002 declared by the Mines Department on 2.3.2002, the reservation of plots for the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes were kept 10%, 10% and 5% respectively. It was represented before the Division Bench of this Court in the said writ petition that the Government is in the process of delineating and demarcating the plots for the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes in accordance with the Granite Policy, 2002, then the Division Bench of this Court disposed of the writ petition no.7078/2003 with a direction to the State Government to delineate and demarcate the plots which are to be reserved for the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes within a period of ten weeks. The petitioners have placed on record several applications and documents, one set after another, to show that even during the pendency of this writ petition, flouting the Division Bench's directions given in writ petition no.7078/2003, the State SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {11} Government went on granting mining leases for granite and as per the information of the petitioners, the State Government virtually granted mining leases for all areas where granite is there without allotting a single mining lease to any member of Scheduled Caste and Scheduled Tribe. Not only this, to see that no plot be given to the members belonging to reserved categories, the State Government granted mining leases to various persons without delineating and demarcating the plots. It is submitted that as per Rule 4 of the Rules of 1986, unless the mining area is notified by the Mining Engineer/Assistant Mining Engineer after obtaining approval from the Director which could have been done only after delineation and demarcation of the plots as per the provisions under the Granite Policy, no mining lease could have been granted to anybody but if that procedure would have been adopted, the State Government could not have granted the mining lease of the plots to be reserved for members of SC/ST to the persons other than the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. Therefore, all allotments made by the State Government during this period are in violation to the statutory provisions of the Rules of 1986 and in violation of Granite Policies of SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {12} the year 1995 as amended in the year 1996 and of 2002 and also contrary to direction of this Court given in DB Civil Writ Petition No.7078/2003. Since the issue raised above is the foundation for the individual claims of the petitioners, therefore, it will be appropriate to consider the issue referred above first. Learned Addl. Advocate General vehemently submitted that the writ petition no.7078/2003 was disposed of by the Division Bench of this Court vide order dated 11.3.2004. DB Civil Contempt Petition NO.89/2005 was filed by Suma Ram, one of the petitioners of writ petition no.7078/2003, alleging that the State Government has willfully disobeyed the direction of this Court given in order dated 11.3.2004. In the said contempt petition, it was averred that, “what is being done is that the plots have been allotted without delineation thereof and another set of orders have been made after delineation of the plots.” In support of this contention, reference was given to the allotment of plots made in Jalore area. The said contempt petition was dismissed by the Division Bench of this Court on 21.8.2006. Therefore, the writ petitions have no merit and the petitioners are unnecessarily raising the SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {13} grievance again. It is also submitted that only in view of the Division Bench decision dated 11.3.2004, interim order was passed in writ petition no.4098/2005 by which the respondents were restrained from making further allotment from the land of khasra no.1591 without making reservation as ordered by the Division Bench in its judgment dated 11.3.2004. In the present writ petitions, the petitioners unsuccessfully raised grievance before the Division Bench of this Court by moving contempt petition that the State Government is disobeying the order of this Court dated 11.3.2004 in writ petition no.7078/2003. The petitioners again have raised same grievance which deserves to be rejected. It is also submitted that individually the petitioners are not entitled to any substantive relief in their favour, therefore, there is no need to re-examine the matter whether the State Government has not obeyed the direction of this Court given vide order dated 11.3.2004. It is also submitted that individual petitioners applied for allotment of the land on the basis of their own claim of search of granite underneath, which is unconnected with issue raised in these petitions, and are claiming grant of lease on the basis of their priority because of their finding SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {14} out the granite in the Government land. In view of the above reason, the petitioners have joined two separate causes and are projecting that they are aggrieved because of not giving benefit of policy to the weaker section of the society. In view of the above, the writ petitioners are misleading this Court, hence, the writ petitions deserve to be dismissed. On merits, learned Addl. Advocate General vehemently submitted that the Granite Policy, 1991 was superseded by Granite Policy, 1995 and the Granite Policy, 1995 has been superseded by Granite Policy, 2002. The petitioners' writ petitions are filed after coming into force of Granite Policy, 2002. In the Granite Policy, 2002, both the provisions have been kept – (1) first cum first serve which is in consonance with the Rules of 1986 (who himself has searched the granite) and (2) as provided under the Granite Policy, 2002. By Granite Policy, 2002, which was notified on 2.3.2002, all prior notifications issued under the Granite Policy, 1995 or earlier have been superseded by Clause 17. It is also submitted that under Clause 12, only in the areas which are to be delineated after notifying the area under Rule 73 of the Rules of 1986 and as provided in First SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {15} Proviso of Clause 1 of the Granite Policy, 2002, the reservation is required to be provided. It is submitted that in the area delineated by the department in Chohtan Tehsil of Barmer and Desuri Tehsil of Pali, reservation has been provided. It is also submitted that Clause 12(i) provides that 50% of the plots delineated in the Government land shall be kept reserved as provided in the policy. Clause 12(iii) of the Granite Policy is required to be read with Clause 12(i) which clearly provides indicates that the reservation shall be only on delineated plots. The petitioners have not applied for grant of mining lease for any delineated plot and, therefore, they are not entitled to allotment of plot as person who discovered the granite underneath the Government land or as the applicant for delineated plot as member of reserved category. In sum and substance, according to learned Addl. Government Advocate, unless and until the plots are delineated, demarcated and are notified, no person can claim preferential right for grant of granite mining lease under any of the policy of the State Government may it be Policy of 1995 as amended in the year 1996 or under the Policy of 2002. Wherever plots were delineated and SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {16} demarcated and notified, the reservation of the plots was kept. Learned counsel for the State vehemently submitted that there are two separate and independent provisions in Clause (1) of the Granite Policy, 2002. As per Sub-clause (i) of Clause (1), the mining lease in the Government land shall be granted by method of application under Chapter II of the Rules of 1986. If Government decides to grant mining lease as per Chapter-II of the Rules of 1986, it is permissible even under Granite Policy, 2002. The delineation of plots is required only as per the Proviso to Sub-clause (i) of Clause (1), when (a) Government proposes to undertake prospecting or mining operation of any mineral and any land has been reserved for that purpose (b) as per Proviso to Clause 1 of the Policy of 2002, existence of granite in the said reserved land is established by a team of Superintending Mining Engineer and Superintending Geologist. Therefore, the State Government's power to grant the mining lease by following the procedure provided in Chapter-II of the Rules of 1986 has been saved even in the Granite Policy, 2002. It is not the case of the petitioners that the Government has reserved any land under Rule 73 of the Rules of 1986 after SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {17} finding out existence of granite in the Government land through the team of Superintending Mining Engineer and Superintending Geologist. Therefore, there arises no question of issuance of any notification and delineating the plots when the leases are granted under Rules of 1986. When any person is seeking mining lease after exploring the granite in Government land, he is entitled to grant of mining lease and in that situation, there cannot arise question of delineating the plot as it cannot serve any purpose. It is also submitted that neither the petitioners prayed nor can compel the respondents to initiate the process of reservation of land under Rule 73 of the Rules of 1986. It is submitted that whenever any action will be taken under Rule 73, the State Government will make provision for delineation of plot as well as for reservation of the plot for allotment to the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. Learned Addl. Advocate General in support of the State's contention that the reservations were made, relied upon a few documents wherein one or two plots were reserved for the persons belonging to Scheduled Castes and Scheduled Tribes, out of which, according to learned counsel for the petitioners, one was withdrawn by the State SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {18} Government and another is under litigation. It will be worthwhile to mention here that an application for amendment of writ petition no.5894/2005 and several other applications and documents and reply to the applications have been filed by the parties, detailed reference of which is not necessary for the purpose of deciding the issue raised by the petitioners in view of the fact that there is no dispute about passing of various orders by the State or by the concerned Minister in the matter of action to be taken for granting mining lease and orders passed for grant of granite mining leases. The peculiarity is that the State Government framed the Granite Policy in the year 1995 and introduced the provision for reservation of the plots for allotment to the members of various categories including the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes, for whose interest, these writ petitions have been filed. The fundamental question is only whether the said benefit reached to the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes or not? Even the State Government is not disputing that the State Government has framed the policy SBCWP No.5894/2005 (Sanjay Sukhadia vs. State of Raj. & Ors.) a/w 4 other connected matters. {19} for grant