JUDGMENT
Prakash Tatia, J.
1. Heard learned Counsel for the parties.
2. Facts of the case are that Marble Policy has been framed by the State Govt. by issuing Notification dated 1.3.2002 exercising powers conferred under Rule 65-A of the Rajasthan Minor Mineral Concession Rules, 1986. According to petitioner, as per Sub-clause (5) of Clause 13 of the Marble Policy, 2002 where the Govt. land is available, a strip of land upto 100 mtrs. wide is requried to be kept reserved around the existing mining boundaries for allotment to the adjoining lessees/quarry licensees to facilitate increase in the size of existing mining lease/quarry licence. It is also provided in Sub-clause (5) that the area of the strip shall be allotted to the adjoining lessees/licensees by application on merit and may be added to their existing mining lease/quarry licence. It is stated that M/s. J.K. Marbles and Minerals was holding an industrial plot near the petitioner’s mining lease Plot No. 23. M/s. J.K. Marbles and Minerals submitted an application on 3.10.2002 before the District Collector, Rajsamand and prayed that they want to surrender the above land upon which the District Collector, Rajsamand passed the appropriate order permitting surrender of the land in favour of the State Govt. vide order dated 5.10.2002, copy of which is placed on record as Annexure 5. It is stated that the petitioner is only to whom the land can be allotted as per Marble Policy 2002 but the District Collector proceeded to grant a No Objection Certificate in favour of M/s. Arora’s J.K. Natural Marbles Limited, Morwad. Copy of this sanction dated 5.10.2002 is placed on record as Annexure-6. It is further stated that since the petitioner is entitled for allotment of the leased land which was surrendered by M/s. J.K. Marbles and Minerals, therefore, it submitted an application on 14.10.2002 for mining lease/renewal of mining lease for which a receipt was issued by the Mining Department of the State Govt., copy of which is placed on record as Annexure 7. It is stated by the petitioner that though the petitioner submitted the application for grant of mining lease as per Clause 13 of the Mining Policy on 14.10.2002 and which has been processed by the respondent No. 3 but petitioner came to know that efforts are being made to grant the mining lease to another person or it may be allotted again for industrial use to someone else.
3. The petitioner, on these facts, challenges firstly inaction in the matter to process and grant mining lease in favour of the petitioner and then action of the respondents by which the respondents want to allot the land in dispute to anybody else other than the petitioner. The petitioner has prayed that appropriate writ, order or direction may be issued to the respondents directing them to consider and allow the application filed by the petitioner on 14.10.2002 for grant of mining lease in terms of Para 13(5) of the Marble Policy 2002 for an area measuring 8428 sq. mtrs. of land adjoining to the plot No. 23 of the petitioner and has also prayed that respondents No. 1 to 4 may be restrained from allotting the land covered by the application of the petitioner to any other person either by way of granting mining lease or for any other purpose.
4. An application was submitted for being impleaded as party by M/s. Arora’s J.K. Natural Marbles Ltd., which was allowed by this Court by order dated 12.11.2002 and the notices were served upon the learned counsel Shri R.L. Jangid, who appears for respondents No. 1 to 4.
5. The newly added respondent No. 5 has already submitted reply to the writ petition, copy of which is given to the learned Counsel for the petitioner. learned Counsel for the petitioner sought time to file rejoinder but when learned Counsel for the respondent No. 5 submitted that he is not going to rely upon the averments made in the reply, in these circumstances as agreed by all the learned Counsels, the matter was heard for admission and grant of stay.
6. It is contended by learned Counsel for the petitioner that the petitioner is the only who can be allotted the land in dispute as per the Marble Policy 2002 and no other can claim any right over the land in dispute because the land in dispute is adjoining to the land of petitioner’s mining lease Plot No. 23 and as per Marble Policy land in dispute can be allotted to the only adjoining lease holder. Not only this, the land till allotted, is required to be reserved by the State Govt. as per the clear provision made in Sub-clause (5) of Clause 13 of the Marble Policy 2002. It is submitted that once it is established that the petitioner is the only one who can be allotted the land in dispute then action of the respondents in entertaining the applications for grant of lease from any other person is contrary to the provisions of statutory policy framed by the State Govt. It is also submitted that the very action of entertainment of the applications is under challenge. The petitioner also submits that petitioner need not to wait for an adverse order against the petitioner by competent authority and can certainly approach this Court before that and can demonastrate that an injury is going to be inflicted upon the petitioner by illegal action, which in this case is, without jurisdition also. It is also submitted that there are reasons to believe that respondents are going to allot the land in dispute to some other person and for that purpose the petitioner relies upon No Objection Certificate granted by the District Collector, Rajsamand on the application of M/s. Arora’s J.K. Natural Marbles Limited by order dated 5.10.2002 (Annex. 6). learned Counsel for the petitioner relies upon the judgment delivered in the case of SMD Kiran Pasha v. Govt. of Andhra Pradesh and Ors., , wherein the Hon’ble Apex Court held that the High Court through out the territories, in relation to which it exercises jurisdiction, is empowered to issue to any person or authority including in appropriate case any Govt. within those territories, direction, order or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for enforcement of any right conferred by Constitution and for any other purpose. The Hon’ble Apex Court observed that protection of right is to be distinguished from its restoration or remedy after violation. That question, what is precisely amount to threat or imminence of violation was also considered and thereafter Hon’ble Apex Court held that conferment of a right or a compulsion rest on society including a State not to infringe that right and therefore writ petition for protection of right from threatened or imminent violation is maintainable. Therefore, according to the learned Counsel for the petitioner the petitioner need not to wait for the injury to be caused before coming to the Court. learned Counsel also relies upon the case of Chief of Army Staff v. Maj. Dharam Pal Kukrety, . In that case, an objection was raised that the writ petition was premature as the writ petition was against the notice wherein Hon’ble Apex Court observed that when such a notice is issued without jurisdiction which would be a grave prejudicial injury to the respondent by an act which was without jurisdiction and where the treat of a prejudicial action is without jurisdiction, a person cannot be asked to wait for injury before seeking the court’s protection. learned Counsel for the petitioner also relies upon the judgment of the Hon’ble Apex Court wherein there was objection with respect to maintainability of the writ petition on the ground of availability of alternative remedy. This was relating to the income tax matter wherein objections were raised on the ground that the company would have sufficient opportunity to raise the objections before the Income-tax Officer. The Hon’ble Apex Court held that when the Constitution confers on the High Courts, the power to give relief and it becomes the duty of the Court to give such relief in fit cases and Courts would be failing to perform the duty if the relief is refused without adequate reasons and on facts Hon’ble Apex Court held that we cannot find any reason for which relief should be refused.
7. learned Counsel for the respondents vehemently submitted that the writ petition of petitioner is absolutely misconceived and no ground is made out by the petitioner to hold that any of the actions of respondents is without jurisdiction and the writ petition is based only on imagination. It is also submitted that scope of interference in the matters of grant of mining lease is very limited in view of the judgments of this Court wherein it has been held that where the procedure was properly adopted by the allotting authority and lease has been granted then there is a little scope for interference in the matter of grant of lease whereas here in this case right of the petitioner is yet to be decided by the competent authority; whether he can be granted lease or not? It is also submitted that what petitioner is seeking by this writ petition is determination of his entitlement under the Policy of 2002 by High Court which as per law, is to be done by the authority appointed under law and has been vested with the jurisdiction to decide the claim of the petitioner. learned Counsel for the respondents also submit that the contention of the petitioner that his application has not been processed by the respondents in time is also having no basis, rather facts mentioned in the writ petition itself show that the respondent acted promptly on the application of the petitioner and the facts mentioned in the writ petition itself are sufficient to hold that the application of the petitioner was processed by the authorities. It is also submitted that for the purpose of grant of mining lease the period provided to process of application is one year in the rules. Here in this case the petitioner submitted application on 14.10.2002 and he admits in Para 24 of the writ petition that his application was processed by the respondent No. 3 but on the basis of some apprehensions that the lease will be granted to someone else or it will be allotted for industrial purposes has rushed to this Court by filing writ petition on 30.10.2002 within 16 days only, such type of petition deserves to be dismissed.
8. It is clear from the facts mentioned in the writ petition that the petitioner submitted his application on the basis of his alleged claim of entitlement on the land under the Marble Policy 2002. Sub-clause (5) of Clause 13 of the Marble Policy is relevant and is quoted hereunder:
(5) Where Government land is available, strip of land upto 100 metres wide shall be kept reserved around the existing mining boundaries for allotment to the adjoining lessees/quarry licensees to facilitate increase in the size of existing mining lease/quarry licence. The area of the strip shall be allotted to the adjoining lessees/licnesees by application on merit and may be added to their existing mining lease/quarry licence.
9. A perusal of Sub-clause (5) of Clause 13 of the Marble Policy makes it clear that where the adjoining Govt. land is avilable, a strip of land upto 100 metres wide is required to be kept reserved around the existing mining boundaries. This land, on application by existing lease holder can be allotted as per their merit. The petitioner has submitted application on 14.10.2002 and same has been entertained by the competent authority. Only about 15 days have passed. The only apprehension on the basis of which the petitioner has submitted this writ petition is the order passed by the District Collector, Rajsamand dated 5.10.2002 (Annex. 6) by which No Objection has been granted in favour of M/s. Arora’s J.K. Natural Marbles Limited. This was the act of the District Collector, Rajsamand which only says that if the land in dispute is allotted to Shri Arora J.K. Marbles Ltd. then the Revenue Deptt. has no objection. It is relevant to mention here that the petitioner admittedly moved application for allotment after 5.10.2002 i.e. on 14.10.2002 still made it a ground of challenge. The District Collector, Rajsamand is not the authority who can allot the mining lease, the decision is admittedly requried to be taken by the respondent No. 3. Here in this writ petition, nothing is there to suggest that the Mining Engineer, respondent No. 3 has acted in violation of the Marble policy or against any statutory provisions of law, therefore, apprehension of inflicting an injury by the respondent No. 3 upon the petitioner is result of mere imagination based on nonexistent facts only. The apprehension of the petitioner that the land in dispute is required to be allotted to the petitioner only as well as apprehension that it will be allotted to someone else are also imaginary apprehension of the petitioner. How strong the imagination of the petitioner may be, unless it is shown that it has some real factual basis to make it real threat, it cannot be made an actionable cause entitling to seek relief from Court and a writ of prohibition cannot be issued.
10. What comes from the contention of the petitioner is that petitioner apprehend that the statutory authority will flout the policy, deny the relief to the petitioner, will grant relief to someone else and will not follow the procedure as provided under law. The contention is without there being any factual matrix in pleading as well as without any evidence to prove the existence of the real threat to the petitioner. If the Mining Department itself on receiving any application from M/s. Arora J.K. Marble that too when no application as required under Sub-clause (5) of the Clause 13 was submitted by the petitioner, processed and comments were called from District Collector, Rajsamand how petitioner can have grievance agaisnt grant of NOC by District Collector Rajsamand which is also granted before submission of application by the petitioner under Clause 13(5) of the Policy 2002.
11. The judgments relied upon by the learned Counsel for the petitioner itself deal with the subject elaborately and it is held in the judgment reported in 1990 (1) SCC 328 that when the right is guaranteed to the aggrieved person and is being infringed by the other party in that case the applicant may complain for inflicting injury by other party. There is no dispute with respect to this proposition otherwise very purpose of power of issuance of writ of prohibition will loose its total effect and it will be of no use. The writ of prohibition or injunctions are issued to prevent the anticipated/threatened injury but distinction is required to be drawn between real threat/apprehension and imaginary threat on the basis of the facts of the case while granting relief order of injunction or writ of prohibition. Unless there exists some real apprehension, the relief of prohibition cannot be granted even against a private person what to say against an statutory authority exercising statutory power. The burden is more when the case is with respect to exercise of power by statutory authority. Here, in this case, I do not find any ground to hold that there is a real threat to the claim of the petitioner.
12. So far as contention of learned Counsel for the petitioner that the respondents be directed to grant the mining lease in terms of Sub-clause (5) of Clause 13 in favour of the petitioner is concerned, as stated above, such relief cannot be granted to the petitioner while exercising jurisdiction under Article 226 of the Constitution and there is no reason for grant of such relief particularly in view of the fact that there is no reason to believe that the authorities will not follow the procedure and will not determine the entitlement of the petitioner from the material on record. The petitioner will be free before the concerned authority to prove its claim for entitlement and the concerned authority, which is well conversant with the facts and can look into the facts, will determine the entitlement of the petitioner in accordance with the rules and the Marble Policy 2002.
13. So far contention of learned Counsel the petitioner that as per Sub-clause (5) of the Clause 13 of the Marble Policy, the land in dispute is required to be reserved for allotment to the existing mining lease holder, it is suffice to say that it has not been shown whether for such reservation any declaration by the State is required in particular form and application of the petitioner is being processed by the authority as admitted by the petitioner himself in the writ petition, then it cannot be said that petitioner is adversely effected in any manner.
14. In view of above discussion, the writ petition deserves to be dismissed. Hence dismissed. No order as to cost.