Tyagi, J - (1.) THESE are two writ petitions giving rise to a common question of law ; therefore, we propose to dispose them of by one judgment.
(2.) WRIT petition No. 197 of 1962 is filed by Messrs Brick Manufacturing Co. , Bhadra a partnership firm. The facts of this case are that the petitioner firm purchased a piece of agricultural land comprising of Khasra No. 330 measuring 5 bighas and 3-1/2 biswas in village Bhadra, and after obtaining permission, and entering into an agreement with the State of Rajasthan under the Rajasthan Minor Mineral Concession Rules, it started manufacturing bricks by constructing a brick-kiln on the said land. The lease granted by the Mining Engineer to the petitioner firm was renewed every year and the petitioner's contention is that it is holding a lease which is valid up to 31st of March, 1963. The petitioner wanted to extend its kiln and, therefore, an application was made by the petitioner firm to the Deputy Commissioner Colonisation, Hanumangarh, for further allotment of land measuring 9 bighas 1 biswa. This application of the petitioner was published by the Tehsildar Colonisation for inviting objections, but instead of granting land to the petitioner, Naib-Tehsildar Colonisa-tion, Nohar, intimated the petitioner firm about the order of the Deputy Commissioner Colonisation requiring the petitioner to stop the manufacturing of bricks in Khasra No. 330 forthwith, and if the petitioner failed to obey his order then under Secs. 22 and 24 of the Rajasthan Colonisation Act, 1954 (hereinafter referred to for the sake of brevity as the Colonisation Act) possession of the land in dispute would be taken over by the Government. The letter of the Naib Tehsildar dated 2nd April, 1962 has been placed on record by the petitioner and is marked as Ex. 5. It was against this order of the Naib-Tehsildar that the petitioner has filed this writ petition challenging the validity of the impugned order on the ground that the Naib Tehsildar or any other officer of the Colonisation Department had no jurisdiction to pass such order. The petitioner further averred that it was carrying on its business under a valid lease granted to it by the Mines and Geological Department of the Government of Rajasthan under Rajasthan Minor Mineral Concession Rules and, therefore, authorities of the Colonisation Department had no jurisdiction to interfere and pass the impugned order to restrain the petitioner from manufacturing bricks on the land owned by the firm. The second writ petition No. 184 of 1962 is filed by Liladhar petitioner with an averment that the land comprising of Khasra No. 331 at Bhadra measuring 22 Kilas was allotted to him by the Director of Colonisation, Hanumangarh, on 24th of January, 1957, and he was permitted to construct a brick-kiln on the said land. The petitioner also obtained a mining lease under the Rajasthan Minor Mineral Concession Rules from the Mining Engineer, Bikaner, and after having invested a sum of Rs. 25,000/- he started manufacturing bricks for which he regularly paid royalty to the Mines and Geological Department under the terms and conditions of the said lease. It is also stated by the petitioner that the period of the lease granted by the Mining Engineer in favour of the petitioner would expire on 31st of March, 1963, and till then he is entitled under the lease to manufacture bricks on the disputed land. It is also disclosed that in 1957 a dispute was raised by one Hansraj about the allotment of the said land to the petitioner, and the Director of Colonisation, thereupon cancelled the allotment of the land and ordered that the bricks manufactured by the petitioner be confiscated, but the dispute was set at rest by the High Court on 1st August, 1958 in writ petition No. 143 of 1957 by setting aside that order of the Director of Colonisation. It was also made clear in that judgment that the Colonisation Officer had no jurisdiction to interfere in the matter of mining leases and held that it was within the jurisdiction of the Mining Department either to grant or withhold permission to manufacture bricks in the land allotted to the petitioner. After the Rajasthan Colonisation Project Areas Brick Kiln (leases) Conditions, 1959, was enforced by the Government of Rajasthan the Deputy Commissioner Colonisation passed another order on the 14th of March, 1962, demanding the petitioner to stop working of the brick kiln and remove within one month all his material from the land which was allotted to him for that purpose in 1957. By this impugned order, the petitioner was also required to deposit the rent of the said land from 1959 up to 31st of March, 1962, at the rate of Rs. 40/- per bigha and also it was directed that if the petitioner wanted to continue to manufacture bricks on the said land then he should make an application under the provisions of the Rajasthan Colonisation Project Areas Bricks kiln (leases) Conditions, 1959, to regularise the case of the land already allotted to him. It is against this order of the Deputy Commissioner of Colonisation that the petitioner has filed the present writ petition praying that the impugned order passed by the Deputy Commissioner Colonisation, which is an obvious encroachment on the freedom of trade guaranteed to the petitioner by the Constitution be quashed and the respondents be directed not to interfere, in any manner, with the petitioner's right to manufacture bricks in 22 kilas of land in respect of which the petitioner holds a valid lease from the Mining Department. It is also prayed that the respondents be restrained from realising the amount of rent assessed arbitrarily by the respondent No. 2 from the petitioner without any authority of law. The State has been impleaded in both these writ petitions as one of the respondents but the reply has been filed on behalf of the State and the Deputy Commissioner Colonisation only in writ petition No. 197/1962. The stand taken by the State in its reply is that the land purchased by the petitioner firm is an agricultural land which could be used only for agricultural purposes and the conversion of such a land for any other use without the sanction of the Government is illegal. Under the provisions of the Colonisation Act, the authorities of the Colonisation Department are entitled to stop the use of the land by the petitioner for any purpose other than agricultural. The land admittedly lies in the project area and as the petitioner did not obtain the sanction of the Government for using the land for non-agricultural purposes and as no permission has been obtained by the petitioner under the provisions of the Rajasthan Colonisation Project Areas Brick Kiln (leases) Conditions, 1959, the Naib Tehsildar was within his competence to stop the working of the kilns. It is further stated in the reply that the lease obtained from the Mining Department does not confer any right on the petitioner to construct the brick kiln on the land in the project area unless permission is obtained by the petitioner from the Colonisation Department under the provisions of the Rajasthan Project Areas Brick Kiln (leases) Conditions, 1959. Mr. Chand Mal Lodha on behalf of the petitioners has strenuously argued that the rights created under the mining lease granted under the Minor Mineral Concession Rules become ripe as soon as the sanction is accorded to such a lease by a competent authority under the Minor Mineral Concession Rules. Mr. Lodha pointed out that there is no provision either in the Colonisation Act or under the Minor Mineral Concession Rules to lend support to the contention of the opposite parties that the rights under the mining lease shall become ripe only after the lessee has obtained further permission from the Colonisation Department under the Rajasthan Project Areas Brick Kiln (leases) Conditions, 1959, issued by the Government of Rajasthan under notification No. F. 6 (123)/rev/b/56 (hereinafter referred to as the impugned notification) dated 21st March, 1959. It was further urged by Mr. Lodha that even if the impugned notification is declared to be valid it does not affect the kilns which have been constructed prior to the issue of the impugned notification. He also contended that the impugned notification could not be issued by the Government under the provisions of sub-sec. (1) and (2) of sec. 7 of the Colonisation Act as these provisions do not confer any authority on the Government to issue such notification, and it is only by misconstruing the provisions of sec. 7 that the Government has assumed such a jurisdiction which was never intended to be given to it by the legislature. Learned Deputy Government Advocate Mr. B. C. Chatterji, while disagreeing with the construction put on sec. 7 by Mr. Lodha, urged that the Government had the authority to issue the impugned notification prescribing conditions for granting leases in the project area for the construction of brick kilns, and submitted that the impugned notification does not, in any manner, come in conflict with the provisions of Minor Mineral Concession Rules and the mining leases granted under these Rules. Mr. Chatterji further urged that even if the conditions prescribed by means of impugned notification are in conflict with the provisions of Minor Mineral Concession Rules, then the mining rules shall stand modified to the extent they are in conflict with the conditions prescribed under the impugned notifications. According to the submission of the learned Deputy Government Advocate, no mining lease granted under the Minor Mineral Concession Rules in a colony is valid unless the lessee has obtained permission under the conditions prescribed by the impugned notification. We gave a careful consideration to the arguments advanced by both the parties. It was in the exercise of the powers conferred by section 15 of the Mines & Minerals (Regulation and Development) Act, 1957, a Central enactment, that the Government of Rajasthan have framed the Rajasthan Minor Mineral Concession Rules, 1959, and enforced them in the State of Rajasthan. From the scheme of these rules read with sec. 2 of the Mines and Minerals (Regulation and Development.) Act, 1957, it becomes obvious that the development of the minor minerals in the State is the concern of the Mines and Geological Department of the State. Sub - rule (2) of rule 1 of the said Rules makes these rules applicable even to the lands wherein Bapi and proprietary rights are claimed. Thus, it would be clear from the provisions of these rules that wherever lease is required to be given in respect of any minor mineral then it can be given under the provisions of the Rajasthan Minor & Mineral Concession Rules, 1959 only, irrespective of the fact whether the land wherefrom the minor mineral is to be used is an agricultural land or not. We could not lay hand on any provision in the Mineral Concession Rules whereby the land situate in a project area declared as colony under the Colonisation Act is to be treated differently in the matter of granting mining lease therein. An elaborate procedure has been provided in the mining rules for the grant of a mining lease, and once the lease is granted the lessee acquires full mining rights under the terms and conditions of the lease granted to him in accordance with the provisions of Rajasthan Minor Mineral Concession Rules, 1959. Power to regulate, supervise and control mining rights in respect of the minor mineral rests with the officers of the Mines & Geological Department of the State. Learned Deputy Government Advocate could not point out to us any provision in Minor Mineral Concession Rules whereby the lessee may be required to obtain further permission from the officers of the Colonisation Department if the land is leased out to him under Rajasthan Minor Mineral Concession Rules in a colony declared under the Colonisation Act. We may state that we could not find any such provision either in the Colonisation Act or in Minor Mineral Concession Rules which may prescribe different procedure for granting mining rights in project areas of a colony. The intent and purpose of the colonisation Act, as we could gather from its preamble and other contents thereof, appear to be to provide provisions for the colonisation and administration of lands in the colonies. The definition of the word "land" as is given in this Act throws further light on the true scope of the Colonisation Act. It is obvious from the perusal of the Act that it applies only to that land which is let or held for agricultural purposes subservient thereto or grove land or for pasturage, including land occupied by houses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing Singhara or other similar produce. The word "land" as defined in the Colonisation Act makes it abundantly clear that the provisions of the Act would apply to no other land except one which is used for above mentioned purposes. Therefore, contention of the learned Deputy Government Advocate that no mining rights are perfect in the colonies which are declared as such under the Colonisation Act unless further sanction is obtained from Colonisation Department does] not appear to be sound as exploitation of mineral by manufacture of bricks after constructing brick kiln does not fall within the purview of the purposes for which the provisions of the Colonisation Act are enacted by the legislature. The contention raised by the learned Deputy Government Advocate that a brick kiln in a project area of a colony cannot be constructed unless lease of the land is obtained from the Colonisation Department for that purpose under the conditions prescribed by the impugned notification of 21st March, 1959 is based on the assumption that the impugned notification issued by the Government under the provisions of sec. 7 of the Colonisation Act, is valid and the Government was competent to issue such conditions under the aforesaid provisions of the law. The contention takes us to a close scrutiny of sec. 7 of the Colonisation Act and the notification issued thereunder. Sec. 7 of the Colonisation Act reads as follows - "7. Issue of statement of conditions of tenancy - (1) The State Government may grant land in a colony to any person on such conditions as may be prescribed. (2) The State Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. (3 ). . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . The heading of this section suggests that the power that the legislature wanted to confer under this provision on the State Government was to issue the statement of conditions in respect of the land to be allotted in a colony for the purposes of creating tenancy rights. Perusal of sub-sec. (2) of sec. 7 makes the object of this section all the more clear that under the provisions of this section conditions can be prescribed only in relation to the grant of land in a colony to tenants. Words "land" and "tenant" have been used in the colonisation Act in technical sense and their defini-ons as given in the Colonisation Act are as follows :-- "2. (V) "land" means land which is let or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage, including land occupied by nouses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing singhara or other similar produce but excluding abadi land; it includes benefits to arise out of land and things attached to the earth or permanently fastened to any thing attached to the earth. " " (ix) 'tenant' means any person holding land in a colony and includes his predecessors and successors in interest and transferees. " From the perusal of the definition of "land" it becomes clear that the land which can be governed by the provisions of the Colonisation Act is that land which is used for the purposes mentioned in the definition of land. While defining "tenant", legislature has used the word "land" which can be given only the restricted meaning as the word "land" got from its definition in the Act. The word "land" as used in sub-sec. (2) of sec. 7 of the Colonisation Act cannot have a wider connotation, and cannot be given a meaning different from its definition as it has been used in relation with tenant. We cannot think that under the provisions of the land can be allotted to tenants for any other purpose which has no relevance with the tenancy rights. Taking brick earth a minor mineral from the land and manufacturing of bricks therefrom can have no connection with the purpose of tenancy and, therefore, whatever authority is conferred on the Government by sub-sec. (2) of sec. 7 of the Colonisation Act to prescribe conditions is in relation with the land which is to be allotted for agricultural purposes or any other purpose subservient thereto, or for such other purposes which have been specified in the definition of the word "land" in the Colonisation Act. As stated above, land allotted for a mining lease does not fall within the provisions of sub-sec. (2) of sec. 7 of the Colonisation Act and therefore, in our opinion, Government have no authority, under this provision of the Act, to prescribe any conditions which may govern the lease of the land in a colony granted for the construction of brick kiln which has no connection whatsoever with the creation of rights regarding tenancy in the land. By no stretch of imagination, it can be construed that construction of brick kiln on the land can be for an agricultural purpose or for any purpose subservient thereto, or such other purposes are given in the definition of "land", and, therefore, prescribing conditions under sec. 7 read with sec. 28 of the Colonisation Act for the construction of brick kiln on the land in a colony is beyond the scope of sec. 7 of the Colonisation Act. The contention raised by Mr. Lodha in this respect has much force and we are inclined to hold that the impugned notification dated 21st March, 1959, prescribing conditions for granting lease for erecting brick kiln in project area is ultra vires of the powers of the Government. When a valid mining lease is granted by a competent authority under the Rajasthan Minor Mineral Concession Rules, 1959, Colonisation Officer has no jurisdiction to interfere with the rights created under such a mining lease even though the land is situated in the project area. Rights once created under a mining lease, which have no relationship, either direct or indirect, with tenancy rights, cannot be disturbed or interfered with by the Colonisation authorities in the manner adopted in these two cases. Such leases are governed either by their own terms or by the conditions prescribed by the Minor Mineral Concession Rules and the authorities competent to pass any order purporting to interfere with the rights so created in the land in a colony for non agricultural purposes are either Government or the officers of the Department of Mines and Geology. We regret to mention that the learned Deputy Government Advocate could not advance any satisfactory argument to persuade us to accept his view that the non-agricultural use of the land in a colony is permissible only when sanction has been obtained by a lessee from the Government or the officers of the Colonisation Department. In view of the provision of rule 1 (2) of the Minor Mineral Conceseion Rules, a valid mining lease can be created under these Rules even in agricultural land where Bapi rights are already in existence and therefore we find no force in the contention of the learned Deputy Government Advocate that in project area such leases can be created only after obtaining permission from the Government or the Colonisation authority. In the absence of any provision in the Minor Mineral Concession Rules or Colonisation Act to this effect that in a colony such additional permission of the Government or the Colonisation officers is necessary to create a valid mining lease, we are not prepared to accept this argument of the State. In the presence of a clear provision in Rajasthan Minor Mineral Concession Rules that a mining lease can be granted also in respect of agricultural land, there is no reason to accept the contention of the State that a further sanction of the Government or the Colonisation authorities is necessary to ripen the rights of the lessee. It will not be out of place to observe that in these cases petitioners have been put to this unnecessary harassment on account of lack of co-ordination between the two departments of the Government. If it were the intention of the Government, that the land in project areas may not be used for mining leases under the Minor Mineral Concession Rules then the purpose could have been achieved by the Government either by issuing administrative instructions to the Department of Mines & Geology directing them not to grant any mining lease in such areas or by bringing a necessary amendment in the Minor Mineral Concession Rules 1959. When once mining lease is granted under the valid rules and rights have been created in favour of a citizen of the country, this sort of interference is uncalled for. The rights created in favour of the citizens under valid law must be respected by the Government and they should be dealt with in accordance with the provisions of the law in force. With regard to the question of charging the rent of the land in dispute in petition No. 184 of 1962 at the enhanced rate of Rs. 40/- per bigha alleged to have been fixed by the Colonisation authorities arbitrarily, learned Deputy Government Advocate could not show to us any provision either from the Colonisation Act, or from any of the rules made thereunder whereby Colonisation authorities could charge rent of the land other than what has been assessed by the department under the relevant rules. The impugned order required the petitioner Liladhar to pay the rent at the rate of Rs. 40/- per bigha as assessed by the Colonisation authorities. It may be mentioned that the officers of the Colonisation Department can charge rent of the land in a colony only in accordance with the provisions of the law in force. The learned Deputy Government Advocate could not point to us any provision in any statute which may empower the Colonisation Department to increase the rent arbitrarily and realise the same from the petitioner from the back date. It may be noted that in the instant case, the disputed land was allotted to the petitioner for the specific purpose of exploiting the minor mineral, viz. birck earth by manufacturing bricks and he has been paying the rent and lease money to the State realisable from him in accordance with the terms of lease granted to him under the Minor Mineral Concession Rules. We feel that under the circumstances of the case, demand by the Colonisation Officer for the payment of the enhanced rent arbitrarily fixed by the respondents is, therefore, illegal and cannot be realised from the petitioner. In both these petitions, the brick kilns were constructed by the petitioners before the impugned notification was issued by the State Government. The contention of Mr. Lodha that the provisions of the conditions prescribed by the Government by means of the impugned notification, even if valid, cannot be attracted to demolish the brick kilns which were constructed prior to the issue of the impugned notification, appears to be quite sound. As stated above, we are of the opinion that the Deputy Commissioner Colonisation had no authority to order the demolition of the kilns constructed under the valid lease granted by the authorities under the Minor Mineral Concession Rules. Every citizen has a right to carry on a business subject, of course, to the conditions which may be laid down by a valid law of the land. In this case, no valid conditions have been prescribed to regulate the construction of kilns in the project area of a colony established under the Colonisation Act, and, therefore, no restriction can be imposed on the petitioners to carry on the business of manufacturing bricks by using their kilas which had already been erected by them op the land allotted to them for that purpose. The impugned notification prescribing conditions for the granting of lease for erecting brick kilns is declared ultra vires of the powers of the Government, and, therefore, no order issued by the Colonisation Department under the impugned notification can be permitted to take effect so as to interfere with the exercise of the fundamental rights of the petitioners to carry on the business of manufacturing bricks under the mining lease validly granted to them. The order of the Tehsildar dated 2. 4. 1962 in petition No. 197 of 1962 and that of the Deputy Commissioner Colonisation, Bhakra Project, Hanumangarh, dated 14th March, 1962 are, therefore, illegal.
(3.) IN view of the above observations, we allow the writ petitions and direct that the opposite parties be restrained from interfering with the rights of the petitioners which they are enjoying under valid leases granted in their favour by a competent authority under the Rajasthan Minor Mineral Concession Rules, 1959. The opposite parties are further restrained from realising from petitioner Lila Dhar in petition No. 184 of 1962 the rent of the disputed land at the rate of Rs. 40/- per bigha from 1959 to 31st of March, 1962. Each petitioner shall get one set of costs from the respondents.;