2015 Supreme(Raj) 1610
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Alok Sharma, J.
Jabir Hussain & anr. - Appellants
Versus
The State of Rajasthan & Ors - Respondents
S.B Civil Writ Petition No. 3789 and 6012 of 2009.
Decided On : 15-05-2015
For the Petitioner:Kamlakar Sharma, Sr. Advocate with Sahid Hasasn, Madhu Sudan S. Rajpurohit for Jabir Hussain, Advocates.
For the Respondent:A.K Sharma, Sr. Advocate with Mahesh Gupta, Ashwani Chobisa for Abdul Jabbar, Advocates.
For the State: Anurag Sharma, AAG.
A LICENSEE WHOSE QUARRY LICENSE IS CANCELED IS ENTITLED TO RESTITUTION OF POSSESSION OF THE QUARRY LICENSE AREA IF THE CANCELLATION ORDER IS SET ASIDE.
Headnote:
MINING LEASE - CANCELLATION - RESTITUTION - POSSESSION - [MMCR, 1986 - RULE 43(1), RULE 47, RULE 48] - [CPC - ORDER 1 RULE 10, ORDER 39 RULES 1 & 2, ORDER 40 RULE 1, SECTION 144] - THE COURT HELD THAT ON THE CANCELLATION OF THE QUARRY LICENSE BEING SET ASIDE, THE POSSESSION OF THE QUARRY LICENSE AREA SHOULD BE RESTORED TO THE ORIGINAL LICENSEE, JABIR HUSSAIN, AS HE WAS ENTITLED TO RESTITUTION UNDER SECTION 144 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
JABIR HUSSAIN, THE HOLDER OF A QUARRY LICENSE, FILED AN APPEAL AGAINST THE CANCELLATION OF HIS LICENSE BY THE MINING ENGINEER. THE APPELLATE AUTHORITY SET ASIDE THE CANCELLATION ORDER AND DIRECTED THAT POSSESSION OF THE QUARRY LICENSE AREA BE HANDED OVER TO EITHER JABIR HUSSAIN OR ABDUL JABBAR, WHO WAS CLAIMING THE LICENSE BASED ON A TRANSFER THAT WAS LATER CANCELED. BOTH JABIR HUSSAIN AND ABDUL JABBAR FILED REVISION PETITIONS AGAINST THIS ORDER, WHICH WERE DISMISSED BY THE DY. SECRETARY, MINES.
Finding of the Court:
THE COURT HELD THAT JABIR HUSSAIN WAS ENTITLED TO RESTITUTION OF POSSESSION OF THE QUARRY LICENSE AREA AS HIS APPEAL AGAINST THE CANCELLATION ORDER HAD BEEN ALLOWED AND THE CANCELLATION OF THE TRANSFER OF THE LICENSE TO ABDUL JABBAR HAD BEEN STAYED. THE COURT FURTHER HELD THAT THE APPELLATE AUTHORITY ERRED IN DIRECTING AN INQUIRY TO DETERMINE WHO WAS ENTITLED TO POSSESSION, AS JABIR HUSSAIN WAS CLEARLY ENTITLED TO RESTITUTION.
Issues: 1. WHO WAS ENTITLED TO POSSESSION OF THE QUARRY LICENSE AREA AFTER THE CANCELLATION ORDER WAS SET ASIDE? 2. WHETHER THE APPELLATE AUTHORITY ERRED IN DIRECTING AN INQUIRY TO DETERMINE WHO WAS ENTITLED TO POSSESSION?
Ratio Decidendi: THE COURT RELIED ON SECTION 144 OF THE CODE OF CIVIL PROCEDURE, 1908, WHICH PROVIDES FOR RESTITUTION WHEN A DECREE OR ORDER IS VARIED, REVERSED, OR SET ASIDE. THE COURT HELD THAT JABIR HUSSAIN WAS ENTITLED TO RESTITUTION AS HIS APPEAL AGAINST THE CANCELLATION ORDER HAD BEEN ALLOWED AND THE CANCELLATION OF THE TRANSFER OF THE LICENSE TO ABDUL JABBAR HAD BEEN STAYED. THE COURT FURTHER HELD THAT THE APPELLATE AUTHORITY ERRED IN DIRECTING AN INQUIRY TO DETERMINE WHO WAS ENTITLED TO POSSESSION, AS JABIR HUSSAIN WAS CLEARLY ENTITLED TO RESTITUTION.
Final Decision: THE COURT ALLOWED THE WRIT PETITION FILED BY JABIR HUSSAIN AND DISMISSED THE WRIT PETITION FILED BY ABDUL JABBAR. THE COURT DIRECTED THAT POSSESSION OF THE QUARRY LICENSE AREA BE FORMALIZED IN FAVOR OF JABIR HUSSAIN IN THE RECORDS OF THE MINING DEPARTMENT.
JUDGMENT
1. - The two writ petitions are being decided by this common Judgment as they arise from the same proceedings pertaining to cancellation of quarry licence No. 70/2002 vide order dated 21.4.2007 passed by the Mining Engineer, Makrana for alleged deficiencies in the course of mining operations by the licence Jabir Hussain following the transfer of quarry licence to him from Abdul Jabbar and endorsed at the relevant time by the Mining Department on 3.12.1988.
2. The facts of the case are that in respect of quarry licence No. 70/2002 on an application for transfer of quarry licence at the instance of Abdul Jabbar, it was transferred in the name of Jabir Hussain on 3.12.1988. The said transfer of the quarry licence was put to challenge by Abdul Jabbar after about 18 years by filing a suit No. 5/2006 for declaration and permanent injunction before the Civil Judge (Sr. Division), Makrana. An accompanying application for appointment of Receiver under Order 40, Rule 1 CPC was dismissed on 5.5.2006. The suit is pending.
3. Thereafter on a notice dated 28.10.2006 issued by the Mining Department to Jabir Hussain to show cause as to why the transfer of the quarry licence on 3.12.1988 not be cancelled for the purported reason of the application for transfer of quarry licence prima facie not bearing Abdul Jabbar's signature, Jabir Hussain in his turn laid a suit No. 11/2006 for permanent injunction before the Civil Judge (Sr. Division) Makrana. His accompanying application under Order 39 Rules 1 & 2 CPC was allowed on 20.1.2007 and an order of injunction passed in his favour. The said order however, clarified that in the event of deficiencies in the mining operations pursuant to the quarry licence standing to Jabir Hussain's name, resort to MMCR, 1986 could be had by the Mining Department. The order dated 20.1.2007 was put to challenge in a civil misc. appeal, a writ petition under Article 227 of the Constitution of India and a SLP before the Hon'ble Apex Court but to no avail.
4. However pursuant to the liberty granted by the Civil Judge (Sr. Division), Makrana in the order dated 20.1.2007, a notice dated 30.3.2007 was issued by the Mining Engineer, Makrana to Jabir Hussain alleging deficiencies in the mining operations in the quarry licence operation. A reminder was sent on 4.4.2007. Reply to the notice was filed on 17.4.2007. However vide order dated 21.4.2007 the Mining Engineer, Makrana finding the reply unsatisfactory cancelled the quarry licence. It is the case of the Mining Department that the possession of the quarry licence area was consequently taken on 23.4.2007, although Jabir Hussain states that the prescribed procedure for taking possession of the quarry licence area was not followed, no notice was given to him, that he continued in possession and he was not physically dispossessed from the quarry licence area.
5. Jabir Hussain aggrieved of the cancellation order dated 21.4.2007 filed an appeal before the Addl. Director, Mines under Rule 43(1) of the MMCR 1986. (Appeal No.209/2007) Abdul Jabbar sought impleadment in the said appeal but his application was dismissed on 23.5.2007. The order dated 23.5.2007 was challenged by Abdul Jabbar in a revision petition under Rule 47 of the MMCR, 1986.
6. In the meantime, the transfer of the quarry licence on 3.12.1988 in favour of Jabir Hussain came to be cancelled by the Mining Engineer, Makrana on 3.3.2008 on the directions of the Director, Mines issued on 21.2.2008 made as required by the Dy. Secretary, Mines under his letter dated 18.2.2008. In the circumstances, the revising authority hearing Abdul Jabbar's revision against the dismissal of his application for impleadment on 23.5.2007 set aside the said order and directed the Appellate Authority to decide the application for impleadment under Order 1, Rule 10 CPC afresh in appeal No. 209/2007 filed by Jabir Hussain. The Revising Authority in its order dated 27.3.2008 observed that further proceedings in the appeal before the Ap
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