1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties.
2. Since common issues arise in all these writ petitions they are being decided together by this common judgment.
3. For the sake of convenience, the facts in Writ Petition No. 1406/2019 are being referred to :
According to the petitioner, he had applied for grant of mining lease to the Collector. After obtaining a no objection certificate along with a resolution passed by the Gram Panchayat, the said application was duly considered. In the light of necessary reports submitted by the Tahsildar and the consent granted by the Competent Authority, the Collector on 11.09.2013 granted mining lease in favour of the petitioner for a period of fifteen years. Pursuant to grant of that lease the petitioner commenced his mining operations. The provisions of the Maharashtra Land Revenue Code, 1966 (for short, ‘the Code’) came to be amended by Maharashtra Act No.34 of 2017 and the provisions of Section 22 A came to be inserted therein. As per those provisions, any land set apart by the Collector for free pasturage of village cattle known as “Gairan land” was not permitted to be diverted, granted or leased for any other use except for any public project of the Central Government or the State Government. In the light of that amendment and in view of Government Resolution dated 12.07.2011, a show cause notice came to be issued to the petitioner on 20.09.2017 proposing to cancel the lease granted to the petitioner on the ground that the lease was being operated on Gairan/Gurcharan Eclass lands. The petitioner submitted his reply to the show cause notice on 03.11.2017 but on the same day, the Collector passed an order cancelling the said lease deed in view of the provisions of Section 22 A of the Code. Being aggrieved by the cancellation of the mining lease the petitioner along with other similarly situated petitioners approached this Court and by the judgment dated 09.07.2018 passed in Writ Petition No.7295/2017(Roshan Kishor Baseriya Vs. State of Maharashtra and anr.) with connected writ petitions, the orders cancelling the leases were set aside on the ground that such action was not preceded by any enquiry whatsoever. This Court therefore directed that all the petitioners should be given due opportunity of being heard and after collecting all relevant revenue records and by making due enquiry, the Collector was permitted to pass fresh orders. Pursuant thereto the Collector called for a fresh report from the Tahsildar as to nature of the lands leased out. Thereafter on 08.01.2019 the Collector passed an order cancelling the mining lease and confirming the earlier order dated 03.11.2017. Being aggrieved by the said order and other similar orders, the petitioners have filed these writ petitions.
4. Shri V.S.Kukday, learned counsel for the petitioners submitted that though the proceedings had been remitted by this Court to the Collector to make an enquiry with regard to the nature of the lands and whether they were lands set apart for free pasturage of village cattle, there was no material on record to indicate the same. The report of the Tahsildar which was initially submitted prior to grant of the mining lease indicated that the lands in question were not suitable for cultivation. The said lands were barren without there being any lake or canal nearby and they were not suitable for any agricultural operations.
It was observed that since the lands were barren, there was no question of harvesting any crops and they were suitable only for mining operations. In the subsequent report submitted by the Tahsildar on 17.12.2018 it was stated that in the revenue records there was no mention of the said lands being set apart for free pasturage of village cattle. The lands were being used only for mining purposes. On this basis, it was submitted that the material considered by the Collector did not indicate that the said lands were being used for grazing of village cattle. The Collector was not justified in cancelling the mining lease on the ground that the land was E-class land. It was submitted that mere reference in the revenue records that the lands were E-class lands would not be sufficient to conclude that they had been set apart for free pasturage of village cattle. The material on record therefore was insufficient even to prima-facie record that conclusion. It was then submitted that the mining lease in question was granted in the year 2013 while the provisions of Section 22 A of the Code were inserted by way of an amendment which came into force only on 26.04.2017. Thus when the leases were granted there was no prohibition in the Code to grant such lands for mining purposes. The provision as amended could not be given retrospective effect and the same could not have been applied after said provision came into force. The lease in question having been granted with the sanction of the State Government, the Collector had no jurisdiction to cancel the same. Reference was also made to the provisions of Section 161 of the Code to submit that even in the Nistar Patrak there was no mention of the lands being kept exclusively for pasturage of village cattle. It was submitted that though the respondents sought to rely upon the provisions of the Berar Land Revenue Code, 1928, the said provisions had been repealed by the subsequent enactments and ‘E-class’ lands were not included in the Code so as to justify the action of the Authorities. He also referred to the Maharashtra Land Revenue (Nistar Patrak and Regulation of Fishing) Rules, 1973 (for short, the Rules of 1973) to indicate the manner in which a Nistar Patrak is prepared by the Collector. It was thus submitted that in the absence of any supporting material whatsoever and merely on the basis of the Government Resolution dated 12.07.2011 along with the provisions of Section 22 A of the Code, the impugned orders had been passed. The said orders being without jurisdiction and without any supporting material were liable to be set aside.
5. Shri Neeraj Patil, learned Assistant Government Pleader for the respondents on the other hand opposed the aforesaid submissions while supporting the impugned action. At the outset he submitted that though the provisions of the Berar Land Revenue Code, 1928 were repealed by the provisions of Section 239 of the M.P.Land Revenue Code, 1954 (for short, the 1954 Code), the record of rights as well as records as prepared were saved despite such repeal and therefore they continued to have legal effect even thereafter. Similar was the position after enactment of the Code inasmuch as under Section 261 of the Code, such record of rights prepared earlier were saved despite repeal of the 1954 Code. It was thus submitted that as under the provisions of Section 42 of the Berar Land Revenue Code, 1928 unalienated unoccupied lands were shown to be E-class lands and such record of rights as maintained continued even thereafter, it was clear that the existing revenue records showing the lands in question to be E-class lands indicated that they were being used as the lands for free pasturage of village cattle. The Collector therefore was justified in proceeding on the basis that the lands granted for mining leases being shown as E-class lands were being used for free pasturage of village cattle. Under the provisions of Section 22 A of the Code, the Collector was justified in proceeding to cancel the mining leases. The action in question was taken after giving due opportunity to the petitioners and after considering the stand taken by them. He also referred to the provisions of Government Resolution dated 12.07.2011 to contend that this Government Resolution was issued with a view to comply with the directions issued by the Hon’ble Supreme Court in Jagpalsingh Vs. Stage of Punjab and others, AIR 2011 SC 1123. In the light of enactment of Section 22 A of the Code, the petitioners who were carrying out their mining operations on E-class lands were precluded from continuing to do so and hence it was open for the Authorities to seek to cancel such mining leases since use of the land was for free pasturage of village cattle and it was not permissible to use it for some other purpose. He also referred to the contents of the affidavit in reply filed on behalf of the respondent nos. 2 and 3 in that regard. It was thus submitted that the challenges as raised had no merit and the writ petitions were liable to be dismissed.
6. I have heard learned counsel for the parties and I have also gone through the material placed on record. I have given due consideration to the submissions as urged. Before considering the challenges as raised, it would be necessary to refer to certain provisions of the Code which are found relevant. Under the provisions of Section 20 of the Code, title of State in all lands, public roads, etc. which are not property of others is recognized. Under Section 22 of the Code the Survey Officer during the course of survey operations under the Code is entitled to set apart unoccupied lands for various purposes including for free pasturage of village cattle amongst other uses. As per the provisions of 23 of the Code, the right of grazing on free pasturage lands extend only to cattle of the village or villages to which such lands belong and the said right has to be regulated according to the rules made by the State Government in this behalf. Under Section 31 of the Code, it is lawful for the Collector subject to the rules made in that behalf to grant unalienated land on certain conditions. Under Section 38 of the Code, the Collector has a power to grant a lease in respect of unalienated unoccupied land for such period and for such purpose subject to rules made in that behalf. Under Section 48 of the Code the State Government has title to all minerals at whatever place found and the State Government also has all necessary powers for proper enjoyment of such rights.
The provisions of Section 22 A were inserted in the Code by Maharashtra Act No.34 of 2017 which came into force on 26.04.2017. The provisions of Section 22 A (1) being relevant the same are reproduced hereunder :
Section 22 A (1) : The land set apart by the Collector for free pasturage of village cattle(hereinafter referred to as “the Gairan land”) shall not be diverted, granted or leased for any other use, except in the circumstances provided in sub-sections (2) or (3), as the case may be.”
7. Thus from the aforesaid statutory provisions of the Code, it can be seen that as regards unalienated lands it is for the Survey Officer to set apart such lands that could be used for free pasturage of village cattle or for grass or fodder reserve. Such survey has to be with the sanction of the Collector. It is in that regard that the provisions of Section 22 A (1) of the Code require that the land so set apart by the Collector for free pasturage of village cattle shall not be leased out for any other use except for some public purpose or public project. For the present purpose, the provisions of Section 22 A (2) to (7) are not relevant since there is no public purpose or public project involved. It is the stand of the Collector that since all the lands in question have been identified as E-class lands it is not permissible to lease out the same for mining purpose. In other words, it is sought to be urged that identifying said lands as E-Class lands itself amounts to setting aside those lands for free pasturage of village cattle. Reference in that regard is made to various 7/12 extracts and other revenue records which contain an entry “Sarkar” as being sufficient to treat the said lands as E-class lands and thus being set apart for free pasturage of village cattle as contemplated by Section 22 A (1) of the Code. However considering the scheme of the Code and especially the provisions referred to hereinabove, it is difficult to accept the said analogy that only on account of the entry “Sarkar” in the revenue records, it should be held that these lands being E-class lands have been set apart for free pasturage of village cattle. As noted above, under Section 161 of the Code the Collector has to prepare Nistar Patrak embodying a scheme of management of all unoccupied land in a village and particularly as regards the matters specified in Section 162 of the Code. Under Section 162 of the Code, it is the requirement of the said provision that the terms and conditions on which grazing of cattle in the village would be permitted has to be provided in a Nistar Pratrak. Similarly under Section 163 of the Code while preparing Nistar Pratrak, the Collector shall as far as possible make provision for free grazing of cattle used for agriculture as well as removal free of charge by the residents of the village for bona fide domestic consumption of any forest produce or minor minerals. Thus the scheme of preparation of the Nistar Pratrak with regard to lands in every village contemplate a specific exercise to be undertaken for setting aside the lands which could be used for grazing of cattle in the village. The Rules of 1973 also contemplate determination of the terms and conditions on which free grazing of cattle would be permitted.
8. In the present case, there is no material collected either by the Tahsildar or Talathi of the concerned village to indicate that such Nistar Patrak had been prepared for the concerned village indicating that the lands which have been now granted for mining purposes were infact shown to be included in the Nistar Patrak as having been set apart for free grazing of cattle in the village. Infact, under the Code entries in the Nistar Patrak would form the basis to hold that such lands were infact set apart for grazing of village cattle. Another relevant aspect which cannot be ignored is the material that was collected initially by the Tahsildar and which was forwarded to the Collector while considering the request made by the petitioners for grant of mining lease. As per the said report, it was noted by the Tahsildar that the lands in question were not suitable for agricultural operations as there were no ponds or canals nearby. It was also not possible to irrigate the same. Hence they were suitable for mining operations. The said report as prepared does not indicate that grazing of cattle was possible on those lands. It is after accepting that report submitted by the Tahsildar that the lands were identified for mining purpose. Similarly the subsequent report of the Tahsildar dated 17.12.2018 indicates that in the 7/12 extracts or other revenue records there was no entry made to show that the land was reserved as being set apart for free grazing of cattle or was being used as Gairan/Gurcharan land. It cannot be ignored that this information has been supplied by the Revenue Authorities themselves to the Collector in the present proceedings which information has been gathered from the existing records. Infact, the Collector in the impugned order has referred to such material being present on record but only in view of Government Resolution dated 17.07.2011 it was held that as it was not permissible to permit mining operations on E-Class/Gairan land, the mining lease was liable to be cancelled.
9. Thus in the light of aforesaid provisions, it can be said that at present there is no material brought on record before the Collector to indicate that the lands which were granted for mining leases were infact the lands set apart for free pasturage of village cattle as contemplated by Section 22 A (1) of the Code. It may be mentioned that in the order dated 03.04.2019 the Court had observed that one of the questions that arose was whether the description of lands as E-class lands by itself would be sufficient to hold that the said lands had been set apart for free pasturage of village cattle as required by Section 22 A of the Code ? Though time was granted to place on record any additional material in that regard, except for the provisions of Berar Land Revenue Code, 1928 and the subsequent enactments, there is no further material placed on record to answer that question. It is thus found that the Collector has proceeded to cancel the mining leases without there being any sufficient material to indicate that said lands had been specifically set apart for free pasturage of village cattle as contemplated by Section 22 A (1) of the Code and despite that the said lands were let out for mining purposes. In the light of the fact that the mining leases have been granted in the year 2013, it was all the more necessary for the Authorities to have placed such material on record to justify the impugned action. Hence there is no option but to hold that the Authorities have proceeded to cancel the mining leases without any material in support of that action.
10. Considering the fact that the respondents seek to rely on the provisions of Section 22 A (1) of the said Act which intends to safeguard such land that has been set apart for free pasturage of village cattle, I am inclined to grant further opportunity to the respondents to substantiate and justify the impugned action. The question whether the provisions of Section 22 A of the Code can be relied upon to cancel mining leases granted prior to its enactment is kept expressly open. Accordingly, the following order is passed :
(1) The orders dated 03.11.2017 and 08.01.2019 passed by the Collector challenged in Writ Petition nos. 1406/2019, 1407/2019, 1408/2019, 1457/2019, 1465/2019, 1466/2019, 1467/2019, 1482/2019, 1488/2019, 1634/2019, 1639/2019, 1640/2019 (except Writ Petition No.3320/2019) cancelling the mining leases are set aside.
(2) The proceedings are remitted to the Collector with liberty to the Authorities to place on record further material to justify it’s action of cancelling the mining leases. All add
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itional material collected shall be supplied to the leaseholders. After giving due opportunity of hearing to the leaseholders, the Collector is free to pass fresh orders pursuant to the contents of the show notices issued earlier. All questions in that regard are kept open. (3) The parties shall appear before the Collector on 10.01.2020. The Collector shall conduct the necessary exercise and pass orders accordingly within a period of eight weeks from that date. In the meanwhile, interim directions that were issued thereby permitting the petitioner to apply to the Collector for issuance of transit passes for transportation of mining lease. The Collector shall pass necessary orders on such applications within a period of 10 days from making of those applications. Needless to state that this interim direction is without prejudice to the rights of the parties. (4) In Writ Petition No. 3320/2019, the petitioner has not yet been granted the mining lease. Though permission to use land admeasuring 4 hectares from Gat No. 29 for quarrying of stone was initially granted by the Collector, that order has been subsequently set aside by the order dated 08.01.2019. By the impugned order dated 08.05.2019 passed by the Collector pursuant to the interim order dated 24.04.2019 passed in this writ petition, the petitioner was denied royalty pass in absence of a mining lease. Thus while following the same course as has been directed to be followed in Writ Petition No. 1406/2019 and other matters of grant of fresh hearing, in the present case the Collector shall take necessary decision and pass orders accordingly within a period of six weeks from 10.01.2020. Since grant of royalty pass to the petitioner has been refused earlier, it is not necessary to conduct that exercise again in the case of the petitioner in Writ Petition No. 3320/2019. The writ petitions are allowed in aforesaid terms. Rule is made absolute with no orders as to costs.