Hon'ble MISHRA, CJ.—Heard.

2. In the writ petition, the petitioner has questioned the constitutional validity of Clause-12 of the Marble Policy, 2002 to the extent of condition of obtaining no objection certificate from the Khatedar/ land owner before sanction of mining lease.

3. It is averred in the petition that the petitioner has applied for obtaining mining lease for mineral marble situated near Village Nizarana, Tehsil and District Rajsamand. He filed application for grant of mining lease on 11.5.2009. The State Government in exercise of powers conferred under Rule 65A of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as the Rules of 1986), has framed Marble Policy of 2002 which was made effective vide notification dated 1.3.2002. As per Clause-12 of the Marble Policy, in case of Khatedari or other private land mining lease/quarry licence shall be granted or renewed in favour of Khatedar or private land holder or such other person having acquired surface rights from the Khatedar or land owner on the basis of mutual legal agreement and subject to the conditions that the applicant agrees to undertake mining operations by deploying the mine machinery prescribed in Annexure-1. Proviso also makes it clear that where available area is less than 2 hectares and surrounded by two or more existing lease/quarry license as provided in Rule 11 of the Rules of 1986, it shall be granted to anyone adjoining lessee/quarry holder on the basis of NOC of the Khatedar/land holder to such person and the new area shall be added to the existing lease/quarry licence.

4. The petitioner has questioned legality of the aforesaid Clause-12 of the Marble Policy on the ground that under Section 24A of the Mines and Minerals (Development and Regulations) Act 1957 (hereinafter referred to as the Act of 1957), notice is required to be given to the occupier of seven days after lease has been granted before actual entry is made by the lease holder. Thus, it is submitted that Clause-12 of the Marble Policy runs contrary to the intent of Section 24A of the Act of 1957. Reliance has also been placed upon Section 24A(2) to contend that compensation is payable to the occupier of the land with respect to loss or damage which is likely to arise or has arisen in consequence of the reconnaissance mining of prospecting operations. Consequently, no NOC or consent should be required.

5. Reliance has also been placed upon Section 89(3) of the Rajasthan Land Revenue Act, 1956 (hereafter referred to as the Act of 1956) which provides that if the State Government has assigned to any person its right over any minerals, mines or quarries, notice has to be served upon all persons having rights in the land effected and their objections have to be heard and considered. It is further provided in Section 89(4) of the Act of 1956 that in exercise of the right herein referred to over any land, the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the State Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Collector, or if his award is not accepted, by the civil court, as nearly as may be in accordance with the provisions of the Rajasthan Land Acquisition Act, 1953. Relying on Rule-18(29) of the Rules of 1986, the petitioner has submitted that Clause-12 of the Marble Policy, 2002 is ultra vires to the statutory provisions of the Act of 1957 and Rules of 1986.

6. In the return filed by the State Government it is contended that the Marble Policy has been framed under Rule-65A of the Rules of 1986. The Policy is not in contravention of the provisions of the Act. Petitioner has failed to furnish NOC from the Khatedar as per Clause-12 of the Policy. Even under the rules of 1986, consent of Khatedar is necessary before mining is undertaken. Policy has been framed to prevent illegal mining activities and to develop the m

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