Arif Mohd. vs State of Rajasthan and Others

Arun Bhansali, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, inter alia, seeking the following reliefs:-

"i) by an appropriate writ, order or direction, respondents No. 1 to 9 may be directed to take action against the respondents No. 10-15 including respondent No. 6 Shri Respondent No. 16 in respect of illegal mining activities if any being carried on by him/them in lieu of which the petitioner was harassed including action as provided under sub-rule (4) and of Rule 48 and sub-rule (5) and the proviso appended to sub-rule (5) to Rule 48;

ii) by an appropriate writ, order or directions, the respondents No. 1 to 9 may be directed to prevent the respondent No. 10-15 or any other person from impeding the petitioner from excavating mineral inside his licensed area covered by ML No. 937/91 under the pretext of any political pressure, and to launch prosecution against him against the respondents No. 10-15

iii) by an appropriate writ, order or directions, the respondents may be directed to provide protection to the petitioner and his family from criminal trespassing and harassment by the respondents No. 10-15 while conducting mining activities in his registered mining area."

The petitioner has impleaded the Secretary-Mines Department, Director-Mines and Geology, Minister of Public Health and Engineer Department, Director General of Police, Superintendent of Police, Sub Divisional Officer, Tehsildar, Mining Engineer (Vigilance) as respondent Nos. 1 to 9 and has impleaded certain private persons as respondent Nos. 10 to 16.

It is, inter alia, claimed in the petition that petitioner is holding mining lease M.L. No. 937/91 for mineral marble and a gap area allotted on 10.05.2001 pertaining to the area comprised in Khasra Nos. 393 and 411, near Sardulkhera, Tehsil Rajsamand; the petitioner is undertaking mining activities peacefully; however, since past one year the respondent Nos. 10 to 15 under guidance of respondent No. 10 have been harassing the petitioner for extortion money and were interfering in the mining activities in the registered mining area; the petitioner has been constantly approaching all the concerned authorities.

It is claimed that as a part of the illegal harassment, a civil suit seeking permanent injunction has been filed, but the respondents could not obtain any relief or injunction pursuant to the same; the respondents are claiming public way in Khasra No. 368, whereas, there is no residence near the allotted mining area and no public way exists; in the year 2009 the petitioner had filed a suit against respondent No. 16 lessee of ML No. 214/96 for clarification of dispute regarding the mining area and public way between the leased areas of the petitioner and respondent No. 16, which suit was eventually withdrawn based on the report of the Tehsildar indicating that the public way falls in the mining area of respondent No. 16 in Khasra No. 368.

Another compliant by respondent Nos. 10 to 15 has been made on 15.01.2015 and based on telephonic conversation with the PHED Minister, the S.D.O., Rajsamand has directed the Mining Engineer to submit a report; it is claimed that the respondent Nos. 10 to 15 have illegally trespassed on the leased mining area and have started harassing the labourers; on approaching the Mining Department, no action has been taken; whereafter, an FIR dated 30.01.2015 was lodged by the petitioner against respondent Nos. 10 to 15.

It is further claimed that provisions of Rule 48 of the Rajasthan Minor Mineral Concession Rules, 1986 (''Rules'') provides for provisions pertaining to unauthorized working of the mines and instead of taking action against respondent No. 16, in whose area the land comprised in Khasra No. 368 falls, the petitioner has been harassed, there is no public way as alleged.

Based on the above submissions, plea pertaining to the Rules and failure of the respondents in enforcing provisions of Rule 48 of the Rules and inaction on the part of the respondent Nos. 1 to 9 against respondent Nos. 10 to 15 have been raised and the relief as indicated hereinbefore has been sought.

It was vehemently submitted by learned counsel for the petitioner that the respondent Nos. 10 to 16 based on political patronage were seeking to harass the petitioner; the petitioner as a law abiding citizen has been undertaking his business/mining activities in the allotted area, however, for extortion of money, the petitioner is being harassed; the authorities were not taking any action against the respondents despite repeated attempts made by the petitioner and, therefore, the petitioner is entitled to seek the relief from this Court.

Reliance was placed on the following observations made by Hon''ble Supreme Court in Urmila Devi Vs. Yudhvir Singh, :-

"66. Public functionaries cannot under the cloak of purported discharge of official duties resort to harassment and humiliation of the citizens on the pretext of a complaint having been received by them, especially when the same does not disclose the commission of any offence triable by the Executive Magistrate or cognizable by the police; nor was there any other proceeding in connection with which such conduct would be justified in law. The plea of the respondent that the prosecution was barred under Section 197 CrPC has, therefore, to be rejected." 10. I have considered the submissions made by learned counsel for the petitioner and have considered the voluminous material placed on record.

From the available material on record it appears that apparently dispute is going on between the petitioner and the respondent Nos. 10 to 15, who claim themselves to be the villagers of Sardulkhera, Tehsil Rajsamand; while the petitioner has categorically claimed in the writ petition that he is not undertaking any mining operations in Khasra No. 368, which is claimed as the public way by the respondent Nos. 10 to 15, rather area of Khasra No. 368 falls within the mining lease of respondent No. 16, the respondent Nos. 10 to 15 have been alleging illegal mining by the petitioner.

The petitioner has claimed in para 7 of the writ petition that the respondents have wrongly filed a suit seeking permanent injunction against the petitioner and, wherein, no injunction has been granted by the trial court, a bare look at the order dated 18.09.2014 passed by the trial court (Annexure-5) reveals that the contention in this regard is not correct as the trial court has by its order granted temporary injunction against the petitioner herein not to undertake mining operations on the public way.

The order dated 18.09.2014 reads as under:-

Despite the fact that a dispute is already before the civil court, the petitioner has failed to point out any reason for not approaching the jurisdictional court, wherein, a suit filed by the respondent Nos. 11 to 15 is already pending pertaining to the subject matter of the present writ petition, wherein, even as a defendant, the petitioner is entitled to seek relief/injunction against the petitioners. The dispute sought to be raised and the entire subject matter of the present writ petition involves highly disputed issues of fact, which cannot be adjudicated without evidence being led by the parties, in extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

Further, the legal foundation sought to be relied on by the petitioner i.e. Rule 48 of the Rules pertains to illegal working of the mines, nowhere the petitioner had made any allegation that the respondent Nos. 11 to 15 have indulged in any illegal working of the mines and, therefore, the legal plea sought to be raised by the petitioner is wholly inapplicable.

The material available on record also indicates that the petitioner has lodged the FIR against the respondents regarding harassment/trespass on 30.01.2015 and affidavit in support of present petition has been sworn on 02.02.2015 without even awaiting for a reasonable time for the outcome of the FIR lodged by the petitioner.

So far as the alleged inaction of the police authorities is concerned, the present writ petition appears to be wholly premature and the adjudication of allegations at this stage is not called for.

Qua the observations made by Hon''ble Supreme Court in the case of Urmila Devi (supra), the petitioner has failed to point out any reference or context regarding the applicability of the observations to the facts of the present case.

Consequently, no case for exercise of jurisdiction is made out, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.