Mining Engineer, Mines & Geology Department @APPELLANT@Hash Smt. Gayatri Devi

CSA No. 216/2017:

The present appeal under Section 100 of the Code of Civil Procedure, 1908, has been preferred by the Mining Engineer and State, laying challenge to

the judgment and decree dated 19.12.2016 passed by the learned District Judge, Jodhpur (hereinafter referred to as the “Appellate Courtâ€) in

Civil Appeal No. 7/2014 (CIS No. 159/2014) vide which, the judgment and decree dated 13.02.2014 passed by the learned Civil Judge (Junior

Division), Jodhpur District (hereinafter referred to as the “Trial Courtâ€) in Civil Original Suit No. 78/2011 (203/2007), has been set aside/modified.

The facts, relevant for the purpose of deciding the present second appeal, in nutshell, are that the plaintiff - Smt. Gayatri Devi (respondent No.1

herein) had filed a suit, seeking mandatory injunction in relation to the Quarry No. 84 of Bhuri Beri, inter alia, stating that the Mining Engineer had

notified Quarry No. 84 of Bhuri Beri and invited applications for grant of quarry license and one Luvjeet Singh Sankhla was granted quarry license on

19.10.1983. It is a matter of record that Luvjeet Singh Sankhla later on surrendered his quarry license on 28.07.1987. Subsequent thereto, the plaintiff

filed an application for grant of quarry license for Quarry No. 84 of Bhuri Beri on 22.08.1995.

The area in question came to be re-notified for grant of quarry license, vide Notification dated 19.02.1996 and by the said Notification, all the

applications filed prior to the date of the said Notification including the plaintiff’s application were rejected.Â

Against rejection of her application, the plaintiff preferred an appeal before the Additional Director (Mines) (‘Appellate Authority’) under the

provisions of the Rajasthan Minor Mineral Concession Rules, 1986, which appeal came to be allowed by the

Appellate Authority, vide its order dated 07.06.1996. The Appellate Authority, while allowing the appeal filed by the plaintiff, remanded the matter

back to the Mining Engineer categorically holding that as the quarry license had been surrendered, there was no necessity of re-notifying the area,

observing as under:-

^^[kfu vfHk;Urk] dh i=koyh ,oa inokj mRrj dk voyksdu fd;k x;k] ftlds vuqlkj vkosnd dk vkosnu i= izkIr gksuk Lohdkj fd;k x;k gS ijUrq mls vLohd`r dj

iqu% fjDr ?kksf’kr blfy;s fd;k x;k fd vf/kd ls vf/kd yksxksa dks tkudkjh feysA [kfu vfHk;Urk ls izkIr mRrj larks’ktud ugha gSA laâ€kksf/kd

jktLFkku viz/kku [kfut fj;k;t fu;e 1986 ds fu;e 278lh 8848 ,o 278 ds izko/kku vuqlkj vihykUV dk mlh [kku ij gd curk gSA bl [kuiV~Vs dks Js.khokj

oxhZdj.k djus dh vkoâ€;drk ugha gS] D;ksafd ;g iqjkuh Msfyfu;sVsM ckm.Mªh esa iM+rk gSA mijksDr dks ns[krs gq, [kfu vfHk;urk] tks/kiqj ds

vknsâ€k xSj vihy fnukad 19-2-96 dks fujLr fd;k tkrk gS vkSj vknsâ€k fn;s tkrs gS fd vihykUV dk vkosnu i= ij laâ€kksf/kr jktLFkku viz/kku [kfut

fj;k;r fu;e 1986 ds fu;e 27¼lh½¼4½ ,oa 27¼Mh½ ds vuqlkj vkoaVu iqu% fd;k tkosA^^

Pursuant to the order dated 07.06.1996, when the application came to be considered by the Mining Engineer, he rejected the plaintiff’s application

again on 27.08.1996. Against which, the plaintiff again filed an appeal, which came to be rejected, vide order dated 17.08.1998 and the order of the

Mining Engineer dated 27.08.1996 was affirmed. Being aggrieved with such order, the plaintiff preferred Second Appeal before the Deputy

Secretary (Mines), which came to be allowed, vide his order dated 23.12.2005 (Ex.6).

The matter again came up for consideration by the Mining Engineer, who had adamantly rejected the plaintiff’s application on the very same

ground of the application being premature, vide his order dated 30.06.2006 (Ex.7). Against such order of the Mining Engineer, the plaintiff preferred

an appeal under Rule 43 of the Minor Mineral Concession Rules, 1986, which ultimately came to be allowed, vide order dated 06.02.2007 (Ex.8) with

the following observations:-

^^eSusa odhy vihykUV dh cgl lquh ,oe~ [kfu vfHk;Urk }kjk izsf’kr rF;kRed izfrosnu o inokj fVIi.kh dk voyksdu fd;kA bl U;k;ky; dh jk; esa tc

ekuuh; mi lfpo [kku }kjk ;g funsZâ€k fn;k x;k Fkk fd izâ€uxr {ks= vxj vU; fdlh O;fDr dks vkoafVr ugha fd;k gks rks vihykUV ds i{k esa izkFkfedrk

ds vk/kkj ij vkoaVu dh dk;Zokgh vey esa yk;h tkos] rc [kfu vfHk;Urk tks/kiqj dks ;g pkfg;s Fkk fd U;k;ky; ds vknsâ€k dh Hkkouk ds vuq:i izâ€uxr

{ks= ds vkoaVu dk;Zokgh izkFkfedrk ds vk/kkj ij vihykUV ds i{k esa djrs A fjdkMZ ds voyksdu ls ;g Li’V gS fd izâ€uxr {ks= vkt Hkh fjDr gS

,oe~ bldk vkoaVu fdlh ds i{k esa ugha fd;k x;k gSaA^^

It is a matter of record that the above order dated 06.02.2007 passed by the Additional Director (Mines) had attained finality, and no challenge thereto

had ever been made. Inspite of this, when the defendant â€" Mining Engineer did not allot the quarry license to the plaintiff, she filed the suit for

mandatory injunction before the competent Civil Court.

The aforesaid suit filed by the plaintiff was registered as Original Suit No. 78/2011 and came to be decided by the Trial Court, vide its judgment and

decree dated 12.02.2014. The learned Trial Court though decided issues No. 1 and 2 in favour of the plaintiff, but declined to grant consequential

relief. The plaintiff-appellant preferred an appeal against the judgment and decree aforesaid passed by the Trial Court, which came to be allowed

by the Appellate Court, vide its judgment and decree dated 19.12.2016. The operative portion of the judgment and decree under challenge dated

19.12.2016, which reads thus:-

^^%%vknsâ€​k %%

vr% vihykFkhZ@oknhuh Jherh xk;=h dh ;g viyh fo:} izR;FkhZx.k@izfroknhx.k e; [kpkZ 5000@&¼v{kjs ikap gtkj :i;s½ Lohdkj dh tkdj ;ksX; flfoy

U;k;k/khâ€k ¼d0[k0½] tks/kiqj ftyk } kjk muds ewy nhokuh okn la[;k&78@2011¼203@2007½] xk;=h cuke [kfut vfHk;Urk esa fnukad

13@02@2014 ds vk{ksfIkr fu.kZ; o fMdzh dks vikLr fd;k tkdj rudh la[;k&3 ds laca/k esa oknhuh ds fo:} fudkys x;s fu’d’kZ o fu.kZ; dks

vikLr fd;k tkrk gS rFkk izfroknh la[;k&3 dh vksj ls fnukad 19@03@2014 dks izLrqr dzkWl vkWCtsDâ€ku [kkfjt fd, tkrs gSa o vihykFkhZ@oknhuh dk

nkok fo:} izfroknhx.k vknsâ€kkRed o LFkk;h fu’ks/kkKk ds vuqrks’k gsrq lohdkj fd;k tkdj izfroknh la[;k&1 dks tfj, vknsâ€kkRed

fu’ks/kkKk vknsfâ€​kr fd;k tkrk gS fd og vUnj nks ekg fookfnr [kku la[;k&84 Hkwjh csjh dk vkoaVu oknhuh ds gd esa dj [kku dk Dokjh ykblsUl

oknhuh ds gd esa tkjh djs rFkk izfroknh la[;k&1 dks oknhuh ds vfrfjDr fdlh vU; ds gd esa mDr fookfnr [kku dk vkoaVu o Dokjh ykblsUl tkjh guha djus

gsrq LFkk;h fu’ks/kkKk ls Hkh ikcUn fd;k tkrk gSA oknhuh mDr [kpkZ jkfâ€k izfroknh la[;k&1 ls izkIr djus dh vf/kdkjh gksxhA rn~uqlkj fMdzh

ipkZ cuk;k tkosA^^

For completion of the record, it may be relevant to mention here that Sohan Lal, to whom the quarry license had been granted, had been impleaded as

a party during the suit proceedings. Sohan Lal filed cross-objections against the judgment and decree dated 13.02.2014, which were however

rejected by the Appellate Court, vide the impugned judgment and decree dated 19.12.2016.

Mr. Dinesh Kumar Ojha, learned counsel appearing on behalf of the appellant â€" State, contended that the Appellate Court has committed a serious

error of law in allowing the appeal, so filed by the plaintiff and issuing direction to grant the quarry license to her. He contended that provisions of Rule

27 (C) & (D) of the Rules of 1986 are very clear and a simple look thereat reveals that the plaintiff’s application dated 22.07.1995 filed before the

area in question came to be notified on 19.12.1996 was premature. He contended in the alternative that after promulgation of Minor Mineral

Concession Rules, 2017, vide which the earlier Rules of 1986 have been repelled, all pending applications stand rejected; for which, the judgment and

decree dated 19.12.2016 is inoperative and has lost its legal force.

Mr. S.D. Purohit, learned counsel for the respondent-plaintiff supporting the judgment under challenge and contended that the learned Appellate Court

has committed no error of law in decreeing the suit filed by the plaintiff. He submitted that the Courts below, in a way, have ensured the compliance

of the orders passed by the Appellate Authorities, pursuant to the appeal filed by the plaintiff. Inviting attention of the Court towards the Appellate

Order dated 07.06.1996 (Ex.4) and the Order dated 06.02.2007 (Ex.8) passed by the Additional Director (Mines) and Order dated 23.12.2005 (Ex.6)

passed by the Deputy Secretary (Mines), he contended that the Appellate Authorities constituted under the provisions of Minor Mineral Concession

Rules, have time and again, found the plaintiff’s application to be competent, clearly holding that the same was not premature, directed the Mining

Engineer to consider the same in accordance with law. He submitted that the said orders passed by the Appellate Authorities in the appeals filed by

none other than the plaintiff herself, having attained finality, were binding on the Mining Engineer and he could not take a view contrary. However,

when no order was passed despite the order dated 06.02.2007 (Ex.8), the plaintiff was left with no option, but to file the suit for mandatory injunction,

seeking a direction to the defendants to allot Quarry No. 84 of Bhuri Beri to the plaintiff.Â

Learned counsel for the respondent submitted that all the arguments advanced by the appellants, including the argument in relation to Rule 27 (C) &

(D) of the Minor Mineral Concession Rules, 1986 are not available to the appellants, as the rights of the plaintiff had already been determined and

attained finality, vide orders of the Appellate Authorities, mentioned above. He painfully submitted that despite the orders of the Appellate Authorities

in plaintiff’s favour, the Mining Engineer had adopted a stubborn attitude and did not allot the quarry license to the plaintiff. In wake of the present

fact-situation and after appreciation of the material available on record, the Trial Court despite deciding the issues No. 1,2, 4 and 5 in favour of the

plaintiff and against the defendants, decided the consequential issue No. 3 against the plaintiff and refused to grant the injunction, as prayed for.Â

With the arguments aforesaid, Mr. Purohit, contended that the Appellate Court, after considering the material available on record, decided the issue

No.3 in favour of the plaintiff and decreed the suit, issuing an injunction in the mandatory form to the defendants to grant quarry license of Quarry No.

84, Bhuri Beri to the plaintiff. He submitted that the present appeal does not involve any question of law, while maintaining that there is no infirmity or

illegality in the orders passed by the Courts below, warranting interference by this Court.

I have heard learned counsels for the parties and considered the material available on record.Â

It is not in dispute that the Trial Court, while deciding the suit filed by the plaintiff had decided practically all the issues in favour of the plaintiff, except

issue No.3, while holding that pursuant to the Order dated 06.02.2007, the plaintiff had neither filed any fresh application nor had she challenged the

proceedings of allotment by the draw of lottery. The relevant excerpt of the Order dated 13.02.2014 is reproduced hereunder:-

^^mipkj ds vf/kdkj dks Hkh mi;ksx esa fy;k x;k gS o [kfut vfHk;ark ds vknsâ€k ds fo:} vfrfjDr funsâ€kd] [kku tks/kiqj o “kklu lfpo ds le{k vihy

izLrqr dh xbZ gS] ijUrq blh ifjizs{; esa vfrfjDr funsâ€kd [kku }kjk ikfjr vknsâ€k fnukad 6-2-07 dh ikyuk ds laca/k esa u rks oknhuh }kjk fdlh izdkj dk

dksbZ vkosnu i= izfoknh la[;k&1 ds le{k izLrqr fd;k x;k gS ou gh ykWVjh dh dk;Zokgh ds vknsâ€k dh dksbZ vihy oknhuh }kjk fdlh l{ke vf/kdkjh ds

le{k dh xbZA vr% tcfd oknhuh ds ikl oSdfYid mipkj Fkk] rks bl U;k;ky; esa oknhuh fdlh izdkj dk vuqrks’k izkIr djus dh vf/kdkfj.kh ugha ikbZ tkrh

gS] o u gh fookfnr [kku ds laca/k esa izfroknhx.k dks ikcan djok, tkus dh vf/kdkfj.kh ikbZ tkrh gSA fygktk] mijksDr leLr foospukuqlkj fook+|d la[;k 03

oknhuh ds fo:} r; fd;k tkrk gSA^^

The Appellate Court, while deciding the appeal, dealt with the aforesaid finding recorded by the Trial Court and has observed, that vide order dated

06.02.2007 (Ex.7), the Additional Director (Mines) had directed the Mining Engineer to decide the plaintiff’s application afresh, and that the

plaintiff was not required to file a fresh application and the Mining Engineer was required to decide plaintiff’s pending application afresh. The

Appellate Court has observed that it was incumbent upon the Mining Engineer to have decided the application of the plaintiff afresh.

In considered opinion of this Court, the Appellate Court was perfectly justified in deciding the issue No.3 in favour of the plaintiff. A perusal of the

Order dated 06.02.2007 (Ex.7) reveals that the Additional Director (Mines) had remanded the matter back to the Mining Engineer, with a direction to

decide the plaintiff’s application afresh, in light of the earlier Order dated 23.12.2005 passed by the Deputy Secretary (Mines). In wake of the

stipulation made in the Order dated 06.02.2007, there was no necessity for the plaintiff to file a fresh application. The conclusion of the Trial Court in

this regard was illegal, clearly contrary to the facts and thus unsustainable. The Appellate Court has thus committed no error in deciding the issue

No. 3 in favour of the plaintiff.

It is noteworthy that against the findings recorded by the Trial Court, the present appellant â€" Mining Engineer has not filed any appeal or cross-

objection, and the same have attained finality. Even if the findings recorded in relation to the issues No. 1 and 2 are examined, which as a matter of

fact, has been done by the Appellate Court, no illegality or infirmity is found qua these findings of the Trial Court.

The appellants’ solitary argument that before the area was notified for the allotment, no application can be filed and considered, may have some

substance, however, in wake of consistent stand and findings recorded by the Appellate Authority and the Deputy Secretary (Mines), this argument is

not open to the Mining Engineer. The Mining Engineer had adopted a stubborn attitude and has vindictively rejected the plaintiff’s application

thrice over, on the same ground, despite there being clear cut observation, finding and direction by the Higher Authorities that the application is not

premature.

In light of the material available on record, it was incumbent upon the Mining Engineer to have considered the plaintiff’s application and granted

the quarry license to her.

There is no error or infirmity in the judgment and decree dated 19.12.2016 passed by the Appellate Court, impugned in the present second appeal. The

questions of law, as proposed, by the appellants at the first look appears to be questions of law, but the same cannot be adjudicated in the present

appeal, as the appellant Mining Engineer is bound by the orders of the Additional Director (Mines) and the Deputy Secretary (Mines) passed pursuant

to the appeals filed by none other than the plaintiff herself. Â

The appeal, therefore, fails.

CSA No. 146/2017:

The present second appeal has been filed by the appellantdefendant No.3 â€" Sohan Lal, who had been impleaded by the Trial Court as a party-

defendant, pursuant to his application. The present appellant (defendant No.3) had filed an application for grant of quarry license in furtherance of the

Notification dated 19.02.1996, when the Quarry No. 84 was notified for allotment. Pursuant to the applications, the Committee, constituted for the

purpose of allotment of quarry license, conducted a lottery, in which, the appellant’s name had been drawn as a successful candidate and

ultimately an order dated 25.08.2007, allotting the quarry license to him, came to be issued.

The present appellant filed cross-objections against the judgment and decree dated 13.02.2014 on 19.03.2014, which were rejected by the Appellate

Court vide its common judgment dated 19.12.2016 impugned in the connected Second Appeal No. 216/2017.

As this Court had rejected the Second Appeal No. 216/2017 filed by the Mining Engineer and affirmed the judgment and decree dated 19.12.2016, the

present second appeal emanating from the same judgment deserves to be and is thus, hereby rejected.

The argument advanced by learned counsel also hovered around Rule 27 (C) & (D) of the Minor Mineral Concession Rules, 1986, which have been

considered and rejected by this Court, while dismissing the aforesaid Appeal No. 216/2017.

As far as other arguments of learned counsel for the appellant are concerned, that the appellant was a bona fide applicant and as he had been granted

the quarry license, his right cannot be put to peril at the instance of the plaintiff - Smt. Gayatri Devi.

In this regard, suffice it to observe that the Additional Director (Mines) had allowed the appeal filed by the plaintiff, vide its Order dated 06.02.2007

and directed the Mining Engineer to decide the plaintiff’s application in light of the earlier Order dated 23.12.2005 passed by the Deputy Secretary

(Mines). It was incumbent upon the Mining Engineer to have decided the plaintiff’s application afresh, before proceeding with the process of

allotment and allotting the quarry license to the present appellant. Admittedly, the application of the applicant - Sohan Lal came to be filed on

23.02.2007/24.02.2007 and the purported allotment, by way of lottery, to the appellant had been made on 25.08.2007 much after decision on Gayatri

Devi’s appeal. The appellant â€" Sohan Lal cannot claim equity or protection of his rights, claiming himself to be a bonafide allottee. No order for

protection of appellant’s right can be granted in the present second appeal in view of the facts, noticed above. The appeal filed by the appellant,

devoid of any merit, is thus, dismissed.