- (1.) THIS writ petition fundamentally challenges the grant of mining leases to the respondent Nos.5 to 12 in District Banswara on multiple grounds, prime of which is that Banswara District in the State of Rajasthan being a scheduled area under the notification dated 12.02.1980 by H.E., the President of India under Article 244 of the Constitution of India was / is out of bounds to non-tribals as the said legal position has purportedly been enunciated by the Hon'ble Supreme Court in the case of Samatha Vs. State of A.P. and Ors. [(1997) 8 SCC 191]. An alternative prayer in the petition is that if the main challenge in the writ petition fails, the petitioner Nos.2, 3 and 5 be held entitled to reconsideration of their applications for grant of mineral concession submitted pursuant to the notification dated 05.02.2008. All other prayers in the writ petition would be subsumed in the two prayers detailed above.
(2.) CLAIMING to be "Meenas " by caste and therefore belonging to the scheduled tribe category in the State of Rajasthan and residents of District Banswara, the case of the petitioners is that following the judgment of the Hon'ble Supreme Court in the case of Samatha (Supra), the Government of Rajasthan issued circulars on 05.09.2000 as amended on 14.09.2000 and on 18.12.2000 imposing a complete prohibition on the grant to non-tribals of mineral concessions in the Schedule-V areas as notified by the President of India vide notification dated 12.02.1980 in the exercise of power under Article 244 of the Constitution of India. The notification included the Districts of Banswara, Doongarpur, parts of District Udaipur, Parts of District Chhitorgarh, and Abu Road Block under Aburoad Tehsil of Sirohi District. The circulars dated 05.09.2000, 14.09.2000 and 18.12.2000 when challenged, were upheld by a learned Single Judge of the Rajasthan High Court at the Principal Seat, Jodhpur in SBCWP No.3289/2002, decided on 06.05.2003, whereby the petition filed by Smt. Kanta Jain was dismissed. The order dated 06.05.2003, passed by the learned Single Judge was put to challenge in DB Civil Special Appeal (W) No.406/2003, which was also dismissed by the Hon'ble Division Bench of this Court on 02.07.2003. Smt. Kanta Jain carried the matter to the Hon'ble Supreme Court where a SLP having been granted, the matter was registered as Civil Appeal No.770/2004 but dismissed on 14.09.2011. It has been submitted that the consistent stand of the State of Rajasthan in the proceedings taken by Smt. Kanta Jain was that the circulars dated 05.09.2000, 14.09.2000 and 18.12.2000 then in issue imposing a total ban on grant of both major and minor minerals leases / quarry licences etc. to non-tribals in Schedule-V areas was in compliance with the directions of the Hon'ble Supreme Court in the case of Samatha (Supra) and that consequently mineral concessions could not be granted to non-tribals in the scheduled areas. The petitioners submit that in spite of the judgment of the Hon'ble Supreme Court in the case of Samatha (Supra) and the circulars dated 05.09.2000, 14.09.2000 and 18.12.2000 being upheld upto the Hon'ble Supreme Court on the specific statement detailed hereinabove on oath by the State of Rajasthan, the State Government vide notification dated 05.02.2008 has arbitrarily / illegally withdrawn the prohibition against non-tribals for grant of mineral concessions within the Schedule-V areas and fresh applications from all and sundry after 30 days of the notification aforesaid invited. On the same day, the State Government is stated to have issued guidelines with regard to the grant of mining lease/s and prospective licence/s etc in the Scheduled area of the State. The further case of the petitioners is that on 06.02.2008, 07.03.2008 and 16.04.2008, they applied for grant of prospecting licence and mining leases in District Banswara – a scheduled area. It has been submitted that the petitioners were the first applicants and by virtue of also belonging to scheduled tribe, their applications ought to have been at least given preference in consonance with the observations of the Hon'ble Supreme Court in the case of Samatha (Supra) and mining leases granted. However, the petitioners' applications were unlawfully rejected inter alia on the ground of being premature or otherwise incomplete in spite of notice. The applications of the respondent Nos.5 to 12 were accepted, processed and LOI issued. On 24.06.2009, the private respondents submitted proposals for diversion of forest land comprised in the area applied for by them of which LOI had been issued. It has been then submitted that in the meantime, on 03.07.2009, the State Government directed that applications for grant of mineral concessions in the scheduled areas in the State filed pursuant to the notification of 05.02.2008 be kept in abeyance and a direction was issued to the Mines and Geological Department, Udaipur that status quo in regard thereto be maintained. Subsequently, on 10.03.2010, the State Government is stated to have issued an order reserving the entire scheduled areas of the State for grant of major mineral concessions only in favour of its own fully owned corporation namely the Rajasthan State Mines and Minerals Ltd. It has been submitted that the process for grant of mineral concessions to the respondent Nos.5 to 12 was thereafter wrongfully continued in spite of the notification dated 03.07.2009. It has also been submitted that respondent Nos.5 to 12 have no manner of connection with the scheduled tribes and consequently the processing of their applications and the grant of requisite statutorily clearances as a precursor to the grant of mineral concessions to them in scheduled areas was wholly illegal, arbitrary and contrary to the judgment of the Hon'ble Supreme Court in Samatha's case (Supra) and Schedule-V of the Constitution of India. In these circumstances, the petitioners approached the Hon'ble Supreme Court by way of a Writ Petition No.195/2012 whereupon in the first instance vide order dated 09.05.2012 while issuing notices, the Hon'ble Supreme Court had in the interim directed that no mining lease in the scheduled areas be granted to respondent Nos.5 and 12, if had not been already granted till the aforesaid date. Subsequently on the matter coming up before the Hon'ble Supreme Court on 21.08.2012, the petitioners were allowed to withdraw the petition under Article 32 of the Constitution of India with liberty to file a fresh petition before this Court under Article 226 of the Constitution of India within a period of four weeks. Hence the present writ petition.
(3.) IN support of the writ petition, the grounds agitated by the petitioners are that (i) the recommendation of the State Government issued on 09.11.2011 for Stage 1 Forest clearance in favour of the respondent Nos.5 and 12 and the resultant clearance of the Central Government on 13.02.2012 is contrary to the State Government's own circular dated 03.07.2009 imposing status quo on the processing of applications even those filed consequent to the notification dated 05.02.2008 and therefore invalid in law; (ii) that the decision in the case of Smt. Kanta Jain has been upheld upto the Hon'ble Supreme Court in Civil Appeal No.770/2004 decided on 14.09.2011 which confirmed and upheld the validity of the circulars dated 05.09.2000, 14.09.2000 and 18.12.2000 excluding consideration of non-tribals in the grant of mineral concessions in scheduled areas and thus militated against the consideration / grant of mineral concessions to the respondent Nos.5 to 12 (non-tribal) in the scheduled areas; and (iii) the consideration and grant to respondent Nos.5 to 10 and 12 under notification dated 05.02.2008 was contrary to the State Government's own stand upto the Hon'ble Supreme Court in the case of Smt. Kanta Jain. (iv) it has been submitted that a reading of Schedule-V of the constitution of India in conjunction with Section 11(2) and 11(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter 'the Act of 1957') would entail an inevitable conclusion from a just construction of the aforesaid provision that scheduled tribes were to be conferred unquestionable preference on their applications for grant of mineral concessions in Scheduled-V areas over all other applications in the non-scheduled tribe category, if at all applications at their instance were entertainable. (v) It has then been contended that subsequent to the State Government's notification dated 03.07.2009 directing status quo on processing of applications for grant of mineral concessions in scheduled areas, the pending applications of the respondent Nos.5 to 10 and 12 for grant of mineral concessions could not be processed and by doing so the State Government has acted against to its own policy decision rendering its action in grant of leases for the minor mineral marble to respondent Nos.5 to 12 wholly illegal, arbitrary and liable to be quashed and set aside. (vi) Aside of the aforesaid grounds, a general sweeping ground has also been taken in support of the writ petition that the State Government is bound by the spirit of Schedule-V of the Constitution of India which implies exclusive rights in scheduled area including right to mineral concession to the local scheduled tribals. (vii) It has been submitted that the action of the State of Rajasthan and the officers in the mining department in rejecting the applications for grant of mining lease by the petitioners for mineral marble in District Banswara and the corresponding decision to grant mineral concession in scheduled areas to respondent Nos.5 to 12 was illegal, arbitrary and ultra vires the Act of 1957, Samatha's case decided by the Hon'ble Supreme Court as also the State Government's own notification dated 03.07.2009 and thus liable to be quashed and set aside.;