SANGEET LODHA,J. - (1.) By way of these writ petitions, the petitioners have challenged the vires of Rule 48 of Rajasthan Minor Mineral Concession Rules, 1986 (for short "the Rules of 1986"), which inter alia provides for penalties for unauthorised mining operation. The petitioners have also questioned the demand notices issued by the Mining Engineer for recovery of cost of the mineral unauthorisedly excavated computed as ten times the royalty payable at the prevalent rates as provided for under first proviso to sub-rule (5) of Rule 48 of the Rules of 1986.
(2.) These two petitions involving the common issues, were heard together and are being decided by this common judgment.
(3.) To appreciate the issues raised, the facts relevant may be summarised thus: D.B.C.WRIT PETITION NO.14915/17 Shri Fateh Khan, the father of petitioner no. 1 and 2 and father-in-law of petitioner no.3 was the khatedar tenant of the land comprising khasra no.703 situated in village Phalodi, District Jodhpur, which is adjacent to the Government land comprising khasra no.705. On 15.6.07, technical team of Department of Mines inspected the lands comprising khasra no.703 and 705 and noticed unauthorised excavation of mineral masonry stone. Accordingly, the site inspection report and panchnama was prepared. A notice dated 10.7.07 under Section 4(1)(1A) of Mines and Minerals (Development and Regulation) Act, 1957 (for short "the Act of 1957") read with Rule 48 of the Rules of 1986 and Rajasthan Mineral (Preventing Illegal Mining, Transportation and Storage) Rules, 2006, was issued by the Assistant Mining Engineer to Shri Fateh Khan and petitioner no.1 and 2 herein, Mishri Khan and Latif Khan. The mineral excavated unauthorisedly was quantified at 6,840 tonnes and accordingly, the cost of the mineral was determined at Rs.5,47,200/- and the approval for recovery was sought by the Assistant Engineer (Mines), Balesar from Superintending Mining Engineer, Jodhpur vide communication dated 19.9.07. The Superintending Engineer issued the notice dated 23.10.07 to Shri Fateh Khan to make his submissions against the demand created, if any. Later, the approval was granted by the Superintending Engineer vide communication dated 17.7.13. It is not the case of the petitioners that any objections were raised against the demand created on their behalf at any stage of the proceedings. The demand created has thus attained finality. In the meantime, Shri Fateh Khan expired on 3.8.14. The Assistant Mining Engineer, Balesar made an application to the Assistant Mining Engineer (Recovery), Balesar for recovery of the outstanding demand as arrear of land revenue under the provisions of Section 256/257 of Rajasthan Land Revenue Act, 1956. The petitioners no.1 and 2 served a notice for demand of justice dated 26.11.15 through their counsel upon the Assistant Mining Engineer, Balesar, but to no avail. D.B.CIVIL WRIT PETITION NO. 10477/16 The petitioner was granted mining lease under the provisions of Rules of 1986 of mining area (ML no. 349/89) measuring 100x60 sq. ft. situated near Village Jirawal, Tehsil Revdar, District Sirohi for excavation of mineral Granite. The mining lease initially granted for a period of 20 years w.e.f. 2.1.91 was further renewed for 20 years w.e.f. 1.1.11. The mining area leased out to the petitioner was inspected by the Mining Engineer, who noticed that the petitioner is indulged in unauthorized excavation of mineral granite from the area beyond the mining area covered by the mining lease granted in his favour and accordingly, panchnama was prepared. The Mining Engineer issued notice dated 8.8.11 to the petitioner to show cause as to why the proceedings may not be initiated against him under Rule 48 of the Rules of 1986. The mine was again inspected by the Mining Engineer in presence of representatives of the petitioner on 22.7.11. Vide yet another notice dated 13.1.12, he Mining Engineer proposed the inspection of the site to be made in presence of the petitioner on 23.1.12 and 24.1.12. According to the petitioner, he had made an application dated 23.1.12 stating that on account of death of his near relative, he would be unable to remain present at the time of site inspection on 23.1.12 and 24.1.12. The site was inspected by the Mining Engineer on the date fixed and the site inspection report and Panchnama were prepared. The mineral illegally excavated by the petitioner was measured as 2496 sq. meters quantified as 7,488 metric tonne. Unauthorisedly excavated mineral blocks available on the site were taken possession of by the State. The petitioner made application for release of the blocks, but to no avail. The Superintending Mining Engineer, while noticing the discrepancies in the unauthorisedly excavated mineral quantified pursuant to two different inspections made, directed Mining Engineer, Sirohi to prepare the Panchnama afresh and submit the proposal for approval after obtaining reply from the leaseholder. Later, the cost of the mineral excavated unauthorisedly quantified at Rs.1,31,04000/- by the Mining Engineer, was approved and demand notice dated 13.8.12 was issued to the petitioner. Thereafter, taking into consideration the representation made by the petitioner complaining against prejudicial attitude of the Mining Engineer, the Superintending Mining Engineer vide order dated 24.8.12 constituted a team with Mining Engineer, Vigilance as its Chairman and directed to submit the inquiry report. At the same time, the Mining Engineer, Sirohi issued a notice dated 30.8.12 creating demand of Rs.1,31,04000 against the petitioner. Pursuant to the order dated 15.10.14 issued by the Superintending Mining Engineer, the Assistant Mining Engineer, Balesar and Foreman-II to verify the boundaries of the sanctioned ML no.349/90 (new ML No.20/10) and submit the report. The report was submitted on 5.12.14 quantifying the mineral illegally excavated as Rs.914.76 metric tonne and the cost of the mineral was quantified at Rs. 6,40,332/- by charging 10 times royalty. The Mining Engineer sought clarification regarding the amount recoverable quantified on the basis of three inspections made on 22.7.11, 23.1.12 and 19.9.13 and 5.12.14. It appears that ultimately, the demand created against the petitioner quantified at Rs. 1,31,04000/- was approved. The legality of the demand created is questioned by the petitioner by way of a revision petition before the revisional authority, which is alleged to be pending. ;