TYAGI, J. - (1.) THIS is a petition under Art. 226 of the Constitution filed by Shivchand to challenge the validity of the order of the Collector, Ganganagar, dated 1st November, 1961 directing the Tehsildar to attach the brickkiln and the bricks lying at the spot belonging to the petitioner.
(2.) PETITIONER Shivchand was permitted by the Panchayat Ridmalsar vide its resolution No. 3 dated 30th November, 1960 (Ex. 1) to construct a brick-kiln and to prepare the bricks by digging the brick earth from Killas Nos. 1, 2, 3, 8. 9, 10, 11 and 12 in Murabba No. 72, Chak No. 60 LNP situate in the Abadi areas within the jurisdiction of that Panchayat. After having obtained the said permission, the petitioner applied to the Mining Department for granting mining lease for quarrying brick earth from the said area which was allotted to the petitioner by the Panchayat. The Assistant Engineer, Mines and Geology, Bikaner, granted the requisite permission under R. 57 (2) of the Rajasthan Minor Mineral Concession Rules, 1959. to quarry the brick earth from Killas Nos. 1, 2, 9, 10, 11, 12, 19 and 20 in Square No. 72 (vide document Ex. 2 dated 25th October, 1961. ). . In pursuance of the said permission, a lease agreement was executed between the petitioner and Mining Engineer on the 25th October, 1961. This lease agreement is placed on record as Ex. 3. According to the terms of this agreement, the petitioner was to pay Rs. 96/- as dead rent and -,/4/- per ton or Rs. 1/- per thousand bricks as royalty. It is alleged that the petitioner paid Rs. 584. 86 NP. as royalty to the Mining Department on 14th September, 1961. The Tehsildar, Padampur on receipt of a complaint from one Rameshwarlal Gupta submitted his report on 7th October 1961, to the Collector, Ganganagar that the petitioner had put up his brick-kiln without permission and, therefore, appropriate action may be taken against him. The Collector on receipt of the said report directed the Tehsildar on 1st Nov. , 1961 (Vide Ex. 5, to attach the petitioner's brick-kiln and the bricks manufactured by him which may be lying at the spot. In pursuance to this order of the Collector, the Tehsildar attached the petitioner's kiln as well as the bricks. Representations were, however, made against this alleged illegal attachment to the Collector whereupon the Collector, by his order dated 31st January, 1962, allowed the petitioner to bake his Kutcha bricks and on 30th of July, 1962, the bricks were ordered to be released from attachment provided the petitioner furnished security to the exent of the value of the bricks so that the Government may forfeit the security amount if the attachment of the bricks was declared to be legal by the authorities. It may, however, be mentioned here that the lease granted to the petitioner by the Mining department meanwhile expired and he obtained another lease and a fresh permission from the department concerned to manufacture the bricks upto 31st March, 1963. The contention of the petitioner is that he was holding a valid permission for quarrying the brick earth and for manufacturing the bricks both from the Panchayat and the mining department and he had invested a capital on this undertaking to the extent of about Rs. 25,000/-, but the Collector without any jurisdiction restrained the petitioner from manufacturing the bricks and baking the same in the kiln. This interference by the Collector, according to the petitioner, caused a substantial loss and harassment to him and that the Collector, Ganganagar had no business to interfere with the petitioner's work of quarrying brick earth and preparing bricks, especially when he was holding a valid permission from the mining department under the rules which prescribed for the grant of the mining leases. In these circumstances, it is prayed by the petitioner that the Collector, Ganganagar, may be prohibited by issuing an appropriate writ, order or direction to interfere with the petitioner's right to quarry brick earth and manufacture bricks in his brick-kiln. The State has contested this petition and submitted in its reply that even if the petitioner had obtained permission from the mining department for quarrying brick earth the petitioner had no right to construct the brick-kiln as the Mining Department had no power to grant such a permission. Regarding the permission accorded by the Panchayat, it was averred that the Panchayat had no power to allot the land which had been surveyed and recorded as cremation ground or grave-yard for the use of the community as the cremation grounds are not included in the Abadi land and that it was not within the jurisdiction of the Panchayat to grant permanent lease of any such land which does not fall within the definition of Abadi land under the Rajasthan Panchayat Act. It is further submitted that in exercise of its power under sec. 102 of the Rajasthan Land Revenue Act, the Government of Rajasthan by a notification dated 26th October, 1960 published in the Rajasthan Gazette, Part IV-C dated 2nd February, 1961, the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Area,) Conditions, 1960, whereunder the allotment of land for the purpose of constructing a brick-kiln could be made only by the Collector of the District and since the permission was accorded by the mining department to the petitioner for quarrying brick earth and for construction of brick-kiln in contravention of the aforesaid conditions, the Collector had an authority to interfere with the petitioner's working of the brick-kiln as he alone had the jurisdiction to grant leases under the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions, 1960, and if anybody erected the brickkiln without obtaining the permission from the Collector he had a power to stop the wrong doer from manufacturing the bricks. It is, therefore, prayed by the respondents that the writ petition of the petitioner be dismissed with costs. It may be pointed out here that this Court by its order dated 14th February 1963, stayed the operation of the impugned order passed by the Collector and the same was later on confirmed on the 18th of July, 1963 as it was not opposed by the learned Government Advocate. The petitioner, therefore, continued to manufacture the bricks in the area leased out to him by the mining department and for that purpose the petitioner was granted every year a fresh lease by the authorities concerned to carry out the mining operations of the brick earth and manufacturing the bricks therefrom in that area. According to the papers field by the petitioner, the petitioner holds a lease under the Minor Mineral Concession Rules which is valid up to 31st of July, 1966. It has not been seriously challenged before us that the area allotted to the petitioner under the mining lease granted to him is used as a cremation ground. Learned Dy. Government Advocate, however, referred to para 8 of the reply filed by the non-petitioners that the area allotted to the petitioner has been surveyed and recorded as cremation ground and grave-yard for the use of the community. In this connection, reference has been made by Mr. Lodha to a document Ex. 9 which is a report of the Patwari of village Ridmalsar wherein it has been mentioned that Killa No. 23 in Murabba No. 68 and Killa No. 3 in Murabba No. 72 in village Ridmalsar are used as the cremation ground. The area of these two kilas, according to this report, is two bighas. The Patwari has also reported that the petitioner is in possession of nine bighas of uncultivated land and that the land occupied by the petitioner by his kiln is not the cremation ground. The Naib Tehsildar has also endorsed this report of the Patwari. In view of this report of the Revenue Officers, the Deputy Government Advocate did not seriously press this point before us as Killa No. 3 in square No. 72 was not ultimately leased out to the petitioner by the Assistant Engineer, Mines and Geology, which has been shown as a cremation ground in the settlement record. Regarding the order of the Panchayat allotting the disputed land to the petitioner, it has been urged by learned Deputy Government Advocate that the Panchayat had no jurisdiction to make such allotment under the provisions of the Rajasthan Panchayat Act, 1953. Mr. Lodha frankly conceded that he could not lay his finger on any of the provisions of the Panchayat Act empowering the Panchayat to make such allotment and, therefore, he prayed that the permission granted by the Panchayat may be ignored. Mr. Lodha, however, urged that a right was created in favour of the petitioner by the grant of a mining lease under the Rajasthan Minor Mineral Concession Rules, 1959, and this right could not be interfered with by the Revenue authorities under the provisions of the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions, 1960 which, according to him, does not confer any power on the revenue authorities to interfere with the lease rights granted under the provisions of the Rajasthan Minor Mineral Concession Rules The main contention of Mr. Lodha is that the petitioner had obtained minig lease from the mining department under the provisions of the Rajasthan Minor Mineral Concession Rules, 1959 for quarrying the brick earth from the area leased out to him and prepare bricks therefrom by erecting a brick-kiln in that area and this right of the petitioner cannot be curtailed or interfered with by any other authority except the one mentioned in the said Rules. He also contends that the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions 1960 (for the sake of brevity to be referred hereinafter as the statement of Conditions of 1960) is ultra vires of sec. 102 of the Rajasthan Land Revenue Act under which they have been framed and that by framing such conditions the State Government could not empower the Collector to interfere with the petitioner's rights created under the Rajasthan Minor Mineral Concession Rules. Mr. Raj Narain, on the other hand, urged that the Rajasthan Minor Mineral Concession Rules have nothing to do with the permission for constructing the brick-kiln and, therefore, the petitioner cannot trace any right to erect a brick kiln from the provisions of these Rules. In the alternative, it was also urged that even if the permission for construction of a kiln could be granted by the Mining Engineer under the Minor Mineral Concession Rules, the statement of Conditions of 1960, which is a special law relating to the construction of a brick kiln shall prevail over the Rajasthan Minor Minerals Concession Rules as the former deals with the grant of a mining lease of a minor mineral while the latter makes provision for the allotment of land. . . 'for the purposes of constructing the brick kiln and it has nothing to do with the grant of a lease for a minor mineral and, therefore, the kiln can be constructed only after obtaining permission from the Collector. In order to decide this controversy raised by the parties, for which lengthy arguments were addressed to us at the Bar, it will be necessary for us to examine minutely the provisions of the Minor Mineral Concession Rules, 1959 and the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions, 1960 and also to see the true scope of their application. Under the scheme of the Mines and Minerals (Regulation and Development) Act, 1957, the State Government has been empowered to make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. Sec. 19 of this Act says that any mining lease granted, renewed or acquired in contravention of the provisions of this Act or any rules or orders made thereunder shall be void and of no effect. This over riding provision of this Act makes it abundantly clear that a mining lease can be granted by the State Government or the officers authorised under the Minor Mineral Concession Rules only in accordance with the provisions of the rules made under sec. 15 of that Act. The scheme of the Minor Mineral Concession Rules, 1959 shows that the leases in respect of the minor minerals in the State can be granted by Government or by the officers of the Mining Department who have been empowered in that behalf by the Government by virtue of Schedule III annexed to the said rules. These rules lay down exhaustive provisions for governing the rights created under the mining leases granted under Chapter II thereof They also deal at length with the procedure for the grant of the mining lease and also for dealing with the delinquent lessee who is found guilty for not complying with the terms of the lease. The rules also prescribe the rate of royalty and the dead rent and the maximum area which can be leased out under these provisions. Reading the Minor-Mineral Concession Rules. 1959 along with sec. 19 of the Mines and Mineral (Regulation and Development) Act, 1957, it becomes quite clear to us that the development of a minor mineral in the State is the concern of the Mines and Geological Department of the State. It is either the Government or the officers of this department, who have been empowered under Schedule III to these rules who can grant the mining leases in respect of the minor minerals under these rules. No other authority except the officers of the mining department or the Government can create rights by giving mining lease to a citizen of India. This Court, while dealing with this question in Liladhar vs. State of Rajasthan (l) has held : "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. " Learned Deputy Government Advocate could not successfully contest this challenge of Mr. Lodha that the mining lease can be granted only by the mining department and by no other authority, but he found away out to escape from the application of the provisions of the Minor Mineral Concession Rules, 1959 by saying that the sanction for construction of a brick kiln is not a subject matter which is covered by the provisions of these rules. His contention is that even if a lease for exploiting the brick earth is granted to a lessee under the Minor Mineral Concession Rules by an authority specified thereunder, it is necessary for the lessee to obtain further permission from the Collector of the District to construct the brick kiln under the provision of the Statement of Conditions of 1960 as according to him, this is the relevant provision of law under which a person can construct a brick kiln on the Government land. Before we examine the provisions of the Statement of Conditions of 1960, we feel it necessary to mention that it is implicit in the lease granted by the mining department for exploiting the brick earth that the lessee in order to manufacture the bricks from the brick earth which is undoubtedly a minor mineral can construct a kiln to bake the bricks without which it is difficult for him to put his product for a commercial use In these circumstances, it is difficult for us to accept the contention of Mr. Raj Narain that construction of a brick kiln for manufacturing the bricks from the brick earth is a separate matter and cannot be covered by the grant of a mining lease under the Minor Mineral Concession Rules. It is inconceivable that a person who has been granted a lease under the provisions of the Minor Mineral Concession Rules to quarry the brick earth has no right to construct the kiln to utilise the mineral for the purpose for which the lease was given to him, and he shall be required to rush to the Collector of the District to obtain permission for that purpose. It has not been urged by Mr. Rajanarain that the brick earth can be used for any other purpose except for manufacturing the bricks. If this contention of learned Deputy Govt. Advocate that under a lease granted for quarrying the brick earth the lessee is not empowered to construct a kiln to bake his bricks is accepted, then the very purpose for which the mining lease is granted will get frustrated, and the lessee shall be able to achieve his purpose of getting a mining lease under the Minor Mineral Concession Rules only when the Collector had put his seal on it by permitting the construction of a kiln on the land leased out to him under the mining lease. In such circumstances, we cannot but hold that the permission to construct a kiln on the area leased out by the mining department is implicit in the lease itself. We now come to the provisions of the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions, 1960. These Statements of Conditions of 1960 were framed and published by the Rajasthan Government in the exercise of their power conferred by sec. 102 of the Rajasthan Land Revenue Act, 1956. Before we examine the true scope of the Statement of these Conditions, we feel it necessary to have a look at the provision of the law under which they have been made by the Government. Sec. 102 of the Rajasthan Land Revenue Act, 1956, reads as follow - "notwithstanding anything hereinfore contained, the State Government shall have power to allot land for the purpose of an industry or for any purpose of public utility on such condictions as it deems fit. "
(3.) NO doubt, this provision of law gives power to the Government to prescribe conditions for the allotment of land for the purpose of an industry or for any purpose of public utility. But the contention of Mr. Lodha is that even if the purpose for constructing a brick-kiln is taken to be a purpose for an industry or for any purpose of public utility, the impugned conditions prescribed by the State Government do not really relate to the allotment of land or the grant of lease for the purpose of the construction of the brick kiln but they really deal with the grant of the leases for exploiting the minor mineral, namely, the brick earth and this being contrary to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957, the Conditions should be declared as illegal and it should be taken that they do not confer any power on the Collector for the grant of the leases for the construction of brick kiln on the land belonging to the Government. Our attention has been drawn in this connection to clause 10 of the Coitions which prescribes premium, rent and royalty and water charges payable by the lessee to the Government. Under this clause the Government is entitled to realise from the lessee the annual rent of Rs. 30/- per bigha and a royalty at the rate of Rs. 1/- per 1000 bricks. It has also been provided in these Conditions that if the land is allotted for the purposes of constructing the brick kiln by the Collector of the District, then such a lease shall be subject to the terms and conditions mentioned in Form C annexed to these Statements of Conditions. In order to find out the real nature of the lease, under these conditions we have to examine the terms of the lease prescribed under the Statement of Conditions itself. The relevant portion of cl. 2 of Form C is in the following form: "2. Lessee's rights to get earth and make bricks - The following liberties are included in the said demise - (1) To get from the said land earth, clay and other materials to be used in the manufacture of bricks and to manufacture the same into bricks on any part of the said land and to sell and dispose of the bricks so manufactured. . . . . . . . . . . . . " Cl. 10 of the Statement of Conditions further provides that a lessee shall have to pay (1) a premium which shall be equal to the highest did offered at a public auction, (ii) annual rent of Rs. 30/- per bigha, (iii) royalty at the rate of Rs. 1/- per 1000 bricks and (iv) water charges at the rate of 20 NP per 1000 bricks, These provisions contained in these statement of Conditions irresistibly lead us to the conclusion that these Conditions have not been prescribed by the Government for the allotment of land for the construction of brick kiln, but they are in the form of a lease of the land permitting the lessee to take the earth, clay and other materials which are used for the manufacture of bricks and for that purpose, the rate of royalty prescribed is not for the construction of the brick kiln but for the preparation of the bricks, and it is calculated on the basis of the amount of the quantity of bricks manufactured by the lessee. It will be relevant to note here that under the Minor Mineral Concession Rules the royalty prescribed for the brick earth also tallies with the rate of royalty that has been prescribed under the statement of Conditions of 1960. These factors lead no room for doubt that in the garb of prescribing the conditions for granting permission or lease for the construction of brick kiln, the Government have authorised the Collectors of the Districts to virtually grant the mining leases in respect of the minor mineral used for the manufacture of the bricks. Looking to the scheme of sec. 102 of the Rajasthan Land Revenue Act, we cannot but hold that this power of granting the lease for a minor mineral cannot be delegated by prescribing such statement of Conditions to the Collector. As observed above, the grant of a mining lease is a concern of the Government or the officers of the Mines and Geological Department as specified in Schedule III and that a mining lease can be granted under the provisions of the Rajasthan Minor Mineral Concession Rules and under no other law as sec. 19 of the Mines and Minerals (Regulation and Development) Act, 1957, is a clear bar for the grant of a mining lease in any other manner except under the Minor Mineral Concession Rules made under the provisions of that Act. It has been clearly laid down in sec. 19 of the said Act that any mining lease granted, renewed or acquired in contravention of the provisions of that Act or any rules or orders made thereunder shall be void and of no effect. We feel that in view of such a specific provision of the Central Act, it is not open to the Government to create a parallel authority for granting the mining lease of the brick earth which has been clearly declared as a minor mineral by the Minor Mineral Concession Rules. In this view of the matter, we are definitely of opinion that the purpose for which the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions, 1960 have been prescribed by the Government runs counter to the object and the scope of sec. 102 of the Rajasthan Land Revenue Act, 1956. The impugned Conditions of 1960 are also illegal as they are repugnant to the provisions of sec. 19 of the Mines and Minerals (Regulation and Development) Act, 1957. Under these circumstances, we are constrained to hold that the Statement of Conditions of 1960 cannot confer any power on the Collector to interfere with the working of the leases in respect of the brick earth validly granted under the provisions of the Rajasthan Minor Mineral Concession Rules. The grievance of the petitioner in this case is quite legitimate that he cannot be restrained by any other authority except the authority created by the Minor Mineral Concession Rules in carrying out the mining operations under the lease granted to him by a competent authority. In view of these discussions, we hold that the Rajasthan Land Revenue (Brick Kiln Leases in Non-Project Areas) Conditions, 1960 are ultra vires of the provisions of sec. 102 of the Rajasthan Land Revenue Act, 1956 and are, therefore, illegal, and the Collector had no authority under these conditions to restrain the petitioner to prepare the bricks in the area leased out to him under the Minor Mineral Concession Rules, 1959. The writ application is, therefore, allowed and the impugned order passed by the Collector, Ganganagar, on 1. 11. 1961 is hereby set aside. Petitioner shall get his costs from the contesting respondents. . ;