Subodh Gopal Bose v. Mines Tribunal — 1974 DIGILAW 22 (PAT)

Judgment Shambhu Prasad Singh, J. 1. Subodh Gopal Bose, the petitioner in these civil writ jurisdiction cases, purchased an estate known as Kuchwar Mahal, bearing tauzi No. 10742, in the sub-division of Sasaram, within the district of Shahabad (now Rahtas). by a registered sale deed dated 30th of September, 1933, from Kuchwar Lime and Stone Company Limited and thus became proprietor of that estate. The area of the entire mahal was about 26952 bighas. The Bihar Legislature passed the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Act) which came into force on 25th of September, 1950. The Kuchwa Mahal estate of the petitioner vested in the State of Bihar under the provisions of the Act, Admittedly the petitioner was an intermediary in relation to the said estate within the meaning of the term as denned in the Act. The estate contained some mines of limestone at (1) Bharuhi, (21 Banjari and (3) Hathni Uiani and iron pyrites at (4) Amjhore. 2. According to provisions of Section 9 (1) of the Act, with effect from the date of vesting all such mines comprised in the estate or tenure as were in operation at the commencement of the Act and were being worked directly by the intermediary notwithstanding anything contained in the Act are deemed to have been leased by the State Government to the intermediary and he is entitled to retain possession of those mines as a lessee thereof. Section 9 (2) of the Act provides that the terms and conditions of the lease under Sub-section (1) by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Sec.12 of the Act. There is also a proviso to this sub-section which says that all such terms and conditions shall be in accordance with the provisions of any Central Act for the time being in force regulating the grant of new mining leases. It appears that according to the State Government, the petitioner was entitled to a lease of only 118.06 acres of limestone mines at Bharuhi, Baniari and Hathni Utani and 2.26 acres of iron pyrites at Amihore, but the claim of the petitioner was that he had become the statutory lessee of the entire area of the Kuchwar Mahal. It appears that according to the State Government, the petitioner was entitled to a lease of only 118.06 acres of limestone mines at Bharuhi, Baniari and Hathni Utani and 2.26 acres of iron pyrites at Amihore, but the claim of the petitioner was that he had become the statutory lessee of the entire area of the Kuchwar Mahal. On account of this difference as to the extent of property to be leased out and perhaps also differences as to the other terms of the lease regarding period of the lease, royalty, dead rent etc., a Mines Tribunal (respondent No. 1) consisting of the District Judge of Gaya as Chairman (respondent No. 4) and Dr. R. P. Sinha, Director of Mines and Geology as the Member was constituted in the year 1960. Dr. R. P. Sinha relinquished charge of his office on 30th of June, 1964 and in his place Shri L.D. Sinha, who was then Chief Mining Officer and subsequently became Director of Mines, was appointed as the Member (respondent No. 5) of the Tribunal. The Tribunal added the Pyrites and Chemicals Development Company Ltd. (now the Pyrites, Phosphets and Chemicals Ltd.), respondent No. 3 to the writ applications, as a party to the proceeding pending before it. This order was passed on an application of respondent No. 3 on the ground that it had taken lease of portions of Amjhore mines from the State of Bihar, respondent No. 2. The order was challenged by the petitioner before this Court by a writ application which was dismissed in limine. 3. The Tribunal heard the parties at length and thereafter on 31st of May, 1971, the Chairman as well as the member pronounced separate decisions. The decision of the Member, respondent No. 5 consists of two parts. Both parts are signed separately by the Member on 31st of May, 1971 itself. In the earlier part of his decision, which runs into several pages, the Member has differed from the Chairman on almost every matter which was before them. The decision of the Member, respondent No. 5 consists of two parts. Both parts are signed separately by the Member on 31st of May, 1971 itself. In the earlier part of his decision, which runs into several pages, the Member has differed from the Chairman on almost every matter which was before them. If the decision of the Chairman and this part of the decision of the member are considered together, it will appear that they have agreed only on two matters, namely, that the petitioner was not entitled to any lease of any area of Hathni Utani limestone mines and as to the royalties to be payable by the petitioner to respondent No. 2 in respect of mines leased out to him. After having signed this part of his decision, the Member has added a post script of four paragraphs of about 250 words in all, stating that he was in agreement with the Chairman on all the matters except with regard to extent of limestone mines at Bharuhi and Baniari to be leased out to the petitioner. This part of the decision of the Member does not give any separate reasons. By a separate order of the same date, the Chairman and the member of the Tribunal made a reference to this Court in accordance with Sub-section (4) of Sec.12 of the Act of the matter as to the extent of limestone mines at Bharuhi and Banfari to be leased out to the petitioner. The decision of award of the Chairman has been made annexure 11 to the writ petition No. 1214 of 1971 and that of the Member as annexure 12 to it. 4. In Civil Writ Jurisdiction Case No. 1214 of 1971 the petitioner firstly claims that annexures 11 and 12 of the petition, i.e. the decision or awards of the Chairman and Member of the Tribunal be quashed and the Tribunal be directed to declare the petitioner statutory lessee in respect of 9.55 sq. miles of iron pyrites and bauxite and laterite overlaying iron pyrites and 2093.90 acres of limestone in Kuchwar Mahal and fix the terms and conditions in accordance with the Mineral Concession Rules, 1949, as claimed and give an award accordingly. miles of iron pyrites and bauxite and laterite overlaying iron pyrites and 2093.90 acres of limestone in Kuchwar Mahal and fix the terms and conditions in accordance with the Mineral Concession Rules, 1949, as claimed and give an award accordingly. In the alternative, he claims that the entire matter in dispute be referred to this Hon ble Court for adjudication under Sec.12 (4) of the Act in respect of all the aforesaid matters. By an amendment, which has been allowed by order No. 15 dated 16th of January, 1974, he further challenges the order of the Tribunal adding respondent No. 3 as party to the proceeding and prays for expunging its name from the proceeding before the Tribunal, In Civil Writ Jurisdiction Case No. 1227 of 1971, the petitioner claims for quashing the order of reference of the Mines Tribunal and directing it to make a reference of the entire dispute between the parties to this Court as disclosed by the two decisions of the Chairman and the Member of the Tribunal respectively. 5. As after having heard the par-: ties we are of the view that all the matters in dispute between the parties, namely, the extent of areas which should have been deemed to be leased out with the petitioner in all the four mines the three of limestone at Bharuhi. Baniari and Hathni Utani and one of iron pyrites etc. at Amjhore, the period of leases and other terms of leases excluding as to royalties should have been referred by the Tribunal to this Court under Section 12 (4) of the Act. I have not stated all the facts leading to the dispute and all the allegations made in the two writ applications. Heretobefore I have referred to only such facts which are relevant and necessary for the aforesaid decision of ours. If necessary, some other facts and allegations of the parties relevant for the aforesaid decision may also be stated hereafter. 6. In paragraph 59 of Civil Writ Jurisdiction Case No. 1214 of 1971, it is stated that when the orders were pronounced by the Chairman and Member on 31st of May, 1971, openly there was no post script part of the decision of the Member. 6. In paragraph 59 of Civil Writ Jurisdiction Case No. 1214 of 1971, it is stated that when the orders were pronounced by the Chairman and Member on 31st of May, 1971, openly there was no post script part of the decision of the Member. In paragraph 63, it is said that as the petitioner has learnt from his advocate Shri Tripurary Sharan, the supplementary decision of the member was not shown to the lawyers on 31st of May, 1971 and it was not on the record on that day when the decisions were delivered and shown to the lawyers. In paragraph 65, it is asserted that the Member had no jurisdiction to modify his own decision after signing it and the supplementary decision has no legal force. Paragraph 66 states that the Tribunal failed to exercise jurisdiction and discharge its duties to refer all the differences for decision under Sec.12 (4) of the Act and paragraph 67 says that after the differences on many points in the two decisions, the Member could not resolve the differences by reducing them. 7. Two counter-affidavits have been filed in reply to allegations referred to in the preceding paragraph, one by the Member (respondent No. 5) sworn by himself and another on behalf of the Chairman (respondent No. 4) sworn by an Upper Division Assistant of the Court of the District Judge at Gaya. The counter-affidavit filed by the Member is short one. After stating that the facts stated in the counter-affidavits filed on behalf of the Chairman are correct, he states as follows in paragraph 3 of his counter-affidavit:- - "That while the case was being heard by the Tribunal at Gaya, I used to take full notes. I also when necessary during the course of hearing the case took the original records for study at the places where I was staying at Gaya. It is true that after the arguments were closed on 12-5-71 I had prepared my draft judgment on the basis of my notes and making a reference to original records and law books cited. I also when necessary during the course of hearing the case took the original records for study at the places where I was staying at Gaya. It is true that after the arguments were closed on 12-5-71 I had prepared my draft judgment on the basis of my notes and making a reference to original records and law books cited. In course of discussions the Chairman had desired me to write my own judgment and findings separately." The replies to allegations made in paragraphs 59, 63, 65 and 67 of Civil Writ Jurisdiction Case No, 1214 of 1971 are in paragraphs 10, 13, 14 and 15 respectively in the counter-affidavit filed on behalf of the Chairman, which read as follows;-- "10. That referring to paragraph 59, it is stated as follows:- - (a) Although after the conclusion of the hearing of the case, the entire records remained with the Chairman and Sri L. D. Sinha, the Member Tribunal left for Patna, a draft copy of the findings prepared by him was received by Chairman with his secret letter number nil dated 20-5-1971, a true copy of which has been marked Annexure A in which he requested the Chairman to go through the same and then to discuss with him. This draft was never made .public and it always remained with the Chairman in his confidential file till the early hours of 31-5-71. Finding himself unable to agree with the view taken by Sri L. D. Sinha, the Chairman dictated his award and it was made ready on the 30th May, 1971. In the early morning of 31st May, 1971, the Chairman told Sri L. D. Sinha that after going through his draft he found himself unable to agree with his view and, therefore, the Chairman prepared another draft of the Award. On being requested by Sri L. D. Sinha to allow him to see the draft the Chairman gave the same to him. After Sri Sinha went through the said draft, he added four paragraphs in his previous draft, being paragraphs 1 to 4, which were typed at his dectation. Sri Sinha further desired that he would pronounce his own award as modified by addition of his four paragraphs mentioned above. (b) Thereafter, the Chairman and Shri L. D. Sinha, both went to the Ijlas and the case was called out. Sri Sinha further desired that he would pronounce his own award as modified by addition of his four paragraphs mentioned above. (b) Thereafter, the Chairman and Shri L. D. Sinha, both went to the Ijlas and the case was called out. The Government Pleader Sri Ambujaksh Ghosh came to the Ijlas and no Advocate on behalf of the opposite party then turned up. The separate awards were then signed by Sri L. D. Sinha as also by the Chairman on the Ijlas on 31-5-1971 and the same was pronounced in open court. The separate award of Sri L. D. Sinha signed and pronounced on 31-5-71 included his previous draft as also paragraphs 1 to 4 thereof subsequently added by him before its pronouncement on the Ijlas. Immediately thereafter Sri Ambujaksh Ghosh, Government Pleader demanded the two Awards for perusal and the same was given to him and he went through both the Awards. The Award of the Member, Tribunal as pronounced in court contained not only the draft findings prepared by Sri L.D. Sinha previously but even the subsequent four paragraphs which were typed on his dictation on the draft award and which were signed by him on 31-5-1971 on the IjLas. It is totally false to say that paragraphs 1 to 4 of the Award of Sri L.D. Sinha, added to his draft award in the manner stated above before its pronouncement in Court, were not there when the separate awards were signed by the Chairman as also by Sri 4 L. D. Sinha on the Ijlas. (c) After the two separate awards were pronounced in court, order No. 137 dated 31-5-1971 was dictated by the Chairman to his Stenographer on the Ijlas which mentions about the differences in the two separate Awards as they existed after Sri L. D. Sinha added paragraphs 1 to 4 in his previous draft and on the same being typed it was signed both by the Chairman as also by the Member, Tribunal on the Ijlas itself. This order-sheet was also signed by Sri Ambujaksh Ghosh, Government Pleader after he went through the two Awards. (d) After the pronouncement of the Award and after the Chairman and the Member, Tribunal left the Ijlas. This order-sheet was also signed by Sri Ambujaksh Ghosh, Government Pleader after he went through the two Awards. (d) After the pronouncement of the Award and after the Chairman and the Member, Tribunal left the Ijlas. Shri Tripurari Sharan, the Advocate for the petitioner, was sent for in order to show the order sheet to him and after looking to the two Awards, he too signed order No. 137 dated 31-5-1971 on the Ijlas itself the same day. The details as to what was awarded by the Chairman as also by the Member, Tribunal and the differences in the two Awards were clearly mentioned in order No. 137 dated 31-5-1971 which as stated above, were duly signed not only by Sri Ambujaksh Ghosh, the Government Pleader but by Sri Tripurari Sharan advocate for the petitioner also and this by itself would falsify the case of the petitioner about the alleged addition of paragraphs 1 to 4 in the award of Sri L. D. Sinha after its pronouncement. (e) As a lot of persons were present on the Ijlas, the Chairman did not notice the presence of Madan Lal, the Law Assistant of the petitioner on the Ijlas at the time it was pronounced. As Shri Tripurari Sharan did not turn up on the Ijlas so long as the Chairman and the Member, Tribunal were present on the Ijlas, the Chairman is unable to say if Sri Tripurari Sharan made any note of the differences and that too correctly and made over the same to any one. 13. That the statements made in paragraph 63 are false, the true facts have been stated above. 14. That referring to paragraph 65, it is stated that the draft finding of Sri L. D. Sinha received with his secret letter, abovementioned, was amended by Sri L. D. Sinha in Chamber of the Chairman before the pronouncement of his award by addition of four paragraphs therein and it was his previous draft finding together with the newly added paragraphs which were, in fact, delivered by him on the Ijlas and thus it is not a question of modification of his previous finding after delivery of the award nor can the four paragraphs subsequently added by him in Chamber of Chairman before the pronouncement of the Award can be said to be his supplementary decision. After Sri L. D. Sinha went through the award prepared by the Chairman he expressed his intention to change his views in part and in fact, he did so, but since he insisted that his previous findings received with his secret letter aforesaid would also be a" part of the award, the same along with the four newly added paragraphs were delivered by him on the Ijlas. 15. That referring to paragraph 67, it is stated that Sri L. D. Sinha, desired to go through my (?) award prepared by Chairman separately and the Chairman of the Tribunal gave the same to him and he went through the same. Thereafter, as stated above, Sri Sinha changed his previous views in part and on his dictation the four newly added Paragraphs in his award were added. Thus it was not a question of resolving of the differences but as Sri Sinha not having delivered his award, it was quite up to him to change his views after going through the award prepared by the Chairman. Statements made in this paragraph to the contrary are distorted." There is no specific reply to allegation made in paragraph 66, perhaps on the ground that it is a submission of law. 8 I am constrained to observe that I am not inclined to accept the statements made in the counter-affidavit filed on behalf of the Chairman and sworn by an Upper Division Assistant of the court of the District Judge, Gaya. Though the member in his counter-affidavit states at one place that the facts stated in the counter-affidavit filed on behalf of the Chairman were correct, his statement quoted earlier shows that all of them could not be correct. For instance, in paragraph 9 of the counter-affidavit of the upper division assistant of the District Judges Court, it is stated that the Member prepared his draft findings at Patna without perusal of the records; the Member says that he had prepared his draft judgment on the basis of his notes and making reference to original records. The upper division assistant of the court of the District Judge, Gaya, also says in paragraph 14 of the counter-affidavit that the Member insisted that his previous findings should also be a part of the award. The upper division assistant of the court of the District Judge, Gaya, also says in paragraph 14 of the counter-affidavit that the Member insisted that his previous findings should also be a part of the award. It is not quite intelligible to me how two contradictory findings by the Member on the same matter could be part of the same decision or award by whatever name it may be called. Be that as it may, the re-.f cord itself indicates that before adding) the four paragraphs the Member had signed the earlier part of his decision. That part of the decision also was adinittedly signed on 31st of May, 1971 as the decision itself shows. According to the affidavits filed on behalf of the respondents themselves, it was so signed on 31st of may, 1971. Had the last four paragraphs of the decision of the Member been there there was no necessity of his signing at two places. It was expected in that case that he would have signed only at one place at the end. In my opinion, therefore, it is manifest that the first part of the decision was openly signed and pronounced by the Member first and thereafter he added the four paragraphs send signed them. Even if it be assumed that he signed them at the Ijlas, that was illegal. Having once pronounced his decision and having signed it he could not change it. He could not even review it as the Act or the Rules made thereunder do not confer any power of review on the Chairman or the Member of the Tribunal. In the circumstances, the four paragraphs of the decision of the Member which are against his own reasonings and findings recorded in his decision already signed have to be struck down. 9. There is also another portion of the decision of the Member which,, in my opinion, has to be struck down. While dealing with the question whether Hathni Utni limestone mine was in operation or not at the time of the commencement of the Act, the Member has observed as follows;-- "Evidence produced by Shri Bose is only oral that the extraction of mineral started in Hathni Utni in 1949. There is no documentary evidence as regards extraction of minerals before 1950. There is no documentary evidence as regards extraction of minerals before 1950. On the other hand no evidence has been produced by the State nor it is the case of the State that there was no extraction in Hathni Utni before 1950. It has been admitted in the pleading of the State that on 25-9-1950, Shri Bose was in working possession in areas over Hathni Utni." Thus, according to these observations of the Member, limestone mine in Hathni Utni was in operation at the time of the commencement of the Act in 1950. At another place, however, the Member observed- "As regards Hathni (Jtani mine. Utani mines opening report in respect of this mine was submitted by the ex-proprietor in the year 1952. It is all admitted position. As a mine can be treated to be in operation only on submission of the opening report, it is apparent that the ex-proprietor had not complied with the legal formalities prescribed by the Mines Act and the Metalliferous Mines Regulation, at the commencement of the B. L. R. Act. Legally, therefore, the claim of the ex-proprietor to be deemed to be a lessee under Section 9 (1) of the Bihar Land Reforms Act, 1950 is not sustain-able, as the mine was not in operation at the commencement of the Act. But it has been admitted on behalf of the State in their petition dated 16-12-63 that the ex-proprietor was reported to have worked over an area of 40.40 acres of Hathni Utani Mines, and this area was included in the total area of 118.06 acres offered to Shri Bose. In 1952, when Shri Bose gave opening notice, he was still the proprietor of the estate, which vested on 2-12-1953 and as the proprietor was perfectly within his rights to carry on mining operation in the area in question. In 1952, when Shri Bose gave opening notice, he was still the proprietor of the estate, which vested on 2-12-1953 and as the proprietor was perfectly within his rights to carry on mining operation in the area in question. Considering the fact that the State had found him to have worked in this area also and offered him lease over this mine even though he may not be legally deemed to be a statutory lessee under the B. L. R. Act, he may be given by the State Government of (?) lease on usual terms and conditions of Mineral Concession Rules from the date of vesting of the estate." Apparently, the Member appears to have committed an error of law which is apparent on the face of the record while making these observations Mine has been defined in Sec.2 (m) of the Act as follows : " mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, but does not include any works, machinery, tramways or sidings appertaining to a mine and the mine shall be deemed to be "in operation" if a notice of the commencement of its operation has been given under S. 14 of the Indian Mines Act, 1923 (4 of 1923) to the District Magistrate of the district in which such mine is situated and the discontinuance of the operation thereof has not been notified to the competent authority." The first part of this definition deals with a situation where the mine is actually in operation. The second part of it deals with a situation where a mine even if not in actual operation shall be deemed to be in operation as a matter of legal fiction. It is preposterous to hold that a quarry in actual operation cannot be a mine if it is not in operation according to second part of the definition as a matter of legal fiction. Therefore, the view taken by the Member in the above quoted observation that limestone mine at Hathni Utni cannot be deemed to be in operation as no notice of the commencement of its operation under Sec.14 of the Indian Mines Act, 1923 had been given by the petitioner is wrong. Therefore, the view taken by the Member in the above quoted observation that limestone mine at Hathni Utni cannot be deemed to be in operation as no notice of the commencement of its operation under Sec.14 of the Indian Mines Act, 1923 had been given by the petitioner is wrong. This view of the Member is also against the decision of the Supreme Court in Rani Umesh-wari Suthoo V/s. Member, Board of Revenue, Orissa (1967 (1) SCA 413 at P. 422). In the circumstances the above quoted paragraph in the decision of the Member where he has held that limestone mine at Hathni Utni though in fact in operation cannot be held to be in operation in the eye of law for want of notice of the commencement of the operation under Sec.14 of the Indian Mines Act, 1923, has also to be struck down. 10. The Chairman has held that limestone mine at Hathni Utni was not in operation as a matter of fact and, as observed earlier, the Member has held that as a matter .of fact it was in operation. * t The result of the striking down of the above quoted paragraph in the decision of the Member will be that there will be a difference between him and the Chairman on the question whether the limestone mine at Hathni Utni mine was in operation at the time of the commencement of the Act and whether the petitioner is entitled to be held as statutory lessee thereof under Section 9 (1) of the Act. 11. Comparing the decision of the learned Chairman of the Tribunal with that of the learned Member, as it remains, after striking down the four paragraphs at the end which, as found earlier, were added to his decision after he had signed and announced the earlier part of it and the paragraph holding that limestone mine at Hathni Utni cannot be deemed to be in operation as no notice of the commencement of its operation under Sec.14 of the Indian Mines Act, 1923, had been given by the petitioner, I find that they differ on the following matters:- - (i) The extent of area of limestone mine at Bharuhi which would be deemed to have been leased out with the petitioner under Section 9 (1) of the Act. (ii) The extent of area of limestone mine at Banjari which should be deemed to have been leased out with the petitioner under Section 9 (1) of the Act. (iii) The extent of area of mine oi iron pyrites etc. at Amjhore which should be deemed to have been leased out with the petitioner under Section 9 (1) of the Act. (iv) Whether the limestone mine at Hathni Utni was in operation at the time of the commencement of the Act and whether the petitioner is entitled to be held as a statutory lessee thereof under Section 9 (1) of the Act, and if so, the extent of area of this mine which should be deemed to have been leased out with the petitioner, (v) The period in respect of which the lease is renewable whether in ac- cordance with the provisions of the Mineral Concession Rules, 1949 or in accordance with the provisions oi the Mines and Minerals (Regulation and Development) Act, 1957. (vi) Amount of dead rent payable whether in accordance with the provisions of Mineral Concessions Rules, l949 or in accordance with the provisions of Mineral Concession Rules, 1960. (vii) What should be the other terms (excluding royalty) of the statutory lease under Section 9 (1) of the Act in favour of the petitioner. 12. On the matters referred to as item Nos. (v) to (vii) in the precean." paragraph, arguments were advanced at some length by learned counsel for the parties. While according to learned counsel for the petitioner, there was difference between the Chairman and the Member of the Tribunal on these matters, whereas according to learned counsel for the State, respondent No. 2 there was no difference. On the question of royalty also arguments were advanced at some length by learned counsel for the parties; learned counsel for the petitioner contending that there was difference between the Chairman and the Member of the Tribunal on this matter as well and learned counsel for the State submitted that there was no difference. In my opinion, there is no difference between the learned Chairman and the learned Member of the Tribunal on the question of royalty and learned counsel for the to is correct. In my opinion, there is no difference between the learned Chairman and the learned Member of the Tribunal on the question of royalty and learned counsel for the to is correct. But, with regard to matters in items (v) to (vii), mentioned in the preceding paragraph, there is difference between the Chairman and the Member of the Tribunal and learned counsel for the petitioner is correct. It is necessary to deal with the aforesaid submissions of learned counsel for the parties. 13. On the question as to what should be the period of the statutory lease in favour of the petitioner, the learned Chairman has summarised his conclusions as follows;-- "20 years with effect from 2-12-1953 with the provision for renewal .as contemplated in Sub-section (2) of Section 8 and with a further provision for renewal in the circumstances and to the extent contemplated in Sub-section (3) of Section 8 of Act (67 of 1957)." On the said question, the learned Member of the Tribunal has summarised his conclusions as follows: "20 years with effect from the date of vesting of the estate i.e. 2-12-53 with option of renewal for another 20 years." There is no difference between the two that in the first instance the lease should be for a period of 20 years from the date of vesting of the estate, but there is difference between the two on the question of the period for which the lease should be renewed. According to the learned Member, there can be only one renewal for a term of 20 years. This is in accordance with the provisions of the Mineral Concession Rules, 1949. According to the learned Chairman, in accordance with the provisions of Sub-section (3) of Section 8 of the Mines and Minerals (Regulation and Development) Act, 1957, therefore there is difference on this matter between the Chairman and the Member of the Tribunal. 14. Dealing with dead rent, the learned Chairman has summarised his conclusions on the question as follows:- - "(i) For the period from 2-12-1953 At the maximum rate of Rs. 10 Per till 10-11-1960. acre per year. (ii) From 11-11-1960 onwards subject At the maximum rate of Rs. 25 per to any change validly made. Hectare per year. On this question the learned Member has summarised his conclusions as follows:-- "Rs. 10 Per till 10-11-1960. acre per year. (ii) From 11-11-1960 onwards subject At the maximum rate of Rs. 25 per to any change validly made. Hectare per year. On this question the learned Member has summarised his conclusions as follows:-- "Rs. 10.00 per acre per year." While according to the learned Member, the rate of dead rent should be Rs. 10/-per acre per year for all times to come, according to the learned Chairman, it should be at the rate of Rs. 25/- per hectare per year from llth of November, 1960. Learned counsel for the petitioner has submitted that this itself indicates that there was a difference between the Chairman and the Member of the Tribunal on the question of dead rent payable per acre per year. On the other hand, learned counsel for the State has urged that as 2.5 acres make 1 hectare, there is no difference between the Chairman and the Member of the Tribunal on this matter. Learned counsel for the petitioner, on. the other hand, has contended that 1 hectare is a little less than 2.5 acres and therefore, in case of large area that will make a lot of difference as to the amount of dead rent payable. Learned counsel for the petitioner appears to be correct as 1 hectare is equal to 2.471 acres only, In my opinion, there can be no doubt that there is a difference between the Chairman and the Member of the Tribural on the amount of dead rent payable, for, while the learned Member had held that it should be Rs. 10.00 per acre per year for the entire period of the lease even for the period of renewal, according to the learned Chairman, this should be subject to any change validly made. The difference on the question of dead rent between the two is also on account of the fact that while the Member thinks that the terms must be in accordance with the Mineral Concession Rules, 1949, the Chairman is of the view that it should be according to law in existence at the time it is to be paid. 15. The difference on the question of dead rent between the two is also on account of the fact that while the Member thinks that the terms must be in accordance with the Mineral Concession Rules, 1949, the Chairman is of the view that it should be according to law in existence at the time it is to be paid. 15. So far other terms of the statutory lease are concerned, the Chairman has concluded his findings as follows:- - "The other necessary terms of the statutory lease as found in this Award in favour of Sri S. G. Bose will be governed by the Mineral Concession Rules. 1949 subject to changes already introduced or to be introduced in accordance with law." The Member has summarised his finding as follows:-- "According to the Mineral Concession Rules, 1949 as prevalent on 2-12-53." On this matter also the difference between the two is similar as in the case of dead rent i.e. according to the learned Member, it should be in accordance with the Mineral Concession Rules, 1949 for the entire period of the lease including period of renewal, but according to the learned Chairman, it should be subject to changes already introduced or to be introduced in accordance with law. Thus there can be no doubt that there is difference between the two on this matter as well. 16. On the question of royalty, the learned Chairman has held as follows:- - "The royalty to be charged from Sri S.G. Bose for the limestone in question shall, therefore, be as follows:- - (i)For the period from 2-12-1953 to 31-5-1958,5 per cent of the sale value at the pits mouth subject to a minimum of 25 paise per tonne. (ii)For the period from 1-6-1953 to 30-10-1962.As prescribed in the second schedule to Act 67 of 1957 as it originally stood. (iii)For the period from 31-10-1962 to 28-6-1968.At the rate of 75 paise per tonne but subject to rebate of 38 paise per tonne to be given on limestone beneficiated by froth flotation me thod. (iv)For the period from 29-6-1968 on wards subject to any change in future validly made.Rs. 1.25 paise per tonne treating the limestone as of superior quality," This is only with regard to limestone, for. (iv)For the period from 29-6-1968 on wards subject to any change in future validly made.Rs. 1.25 paise per tonne treating the limestone as of superior quality," This is only with regard to limestone, for. according to the decision of the learned Chairman, the petitioner is not entitled to any statutory lease in respect of mines of iron pyrites etc, at Amjhore. However, from the observations of the learned Chairman with regard to dead rent it appears that had he found that there should be statutory lease in favour of the petitioner in respect of mine of iron pyrites etc. at Amjhore, the royalty payable by the petitioner would have been the same as in case of limestone. The learned Member on the question of royalty has held as follows:- - "(a) Pyrites-- 5% of the sale value at the pits mouth (vide Rule 41 (1) (i) aread with item 9 of the Schedule 1) from 2-12-53 to 31-5-58 and 1-6-58 in accordance with Section 9 (1) read with Second Schedule of Mines and Minerals (Regulation and Development) Act, as modified from time to time. (b) Limestone-- 5% of the sale value at the pits mouth subject to a minimum of 25 paise per tonne from 2-12-53 to 31-5-58 and from 1-6-58 in accordance with Section 9 (1) read with Second .Schedule of Mines and Minerals (Regulation and Development) Act, as modified from time to time." It is manifest that there is no difference between the learned Chairman and the learned Member on the question of royalty for the period up to 31st of May, 1958. For the period from 1st of June, 1958 up to 30th of October, 1962 also there is no difference between the two as both hold that the royalty is payable in ..accordance with Second Schedule to the Mines and Minerals (Regulation and Development) Act, 1957. For the period from 31st of October, 1962, according to learned Member, the royalty payable should be in accordance with the provisions of Second Schedule to the Mines and Minerals (Regulation and Development) Act, 1957 as modified from time to time.. For the period from 31st of October, 1962, according to learned Member, the royalty payable should be in accordance with the provisions of Second Schedule to the Mines and Minerals (Regulation and Development) Act, 1957 as modified from time to time.. The learned Chairman, on the other hand, has observed that for the period from 31st of October, 1962 to 28th of June, 1968, the royalty payable should be at the rate of 75 paise per tonne but subject to a reftate of 38 paise per tonne to be given on limestone beneficiated by froth flotation method and from 29th of June, 1968 onwards at the rate of 1.25 paise per tonne treating the limestone as of superior quality, subject to any change in future validly made The calculation for the period 31st of October, 1962 to 28th of June, 1968 has been made by the learned Chairman in accordance with the notification of the Central Government No. GSR 1486 dated 31st of October, 1962. Though no notification of the year 1968 lias been placed before us. I am inclined to presume that the Chairman has fixed the royalty for the period from " 29th June, 1968 onwards also, in accordance with the change made in the Second Schedule to Act 67 of 1957. It would thus appear that there is no difference between the learned Chairman and the learned Member on the question of royalty, for, the Member, as already noticed, has held that with effect from 31st of June, 1958 it is payable in accordance with the provisions of Second Schedule of the Mines and Minerals (Regulation and Development) Act, 1957, as modified from time to, time and the learned Chairman has merely made the calculations for the aforesaid period in accordance with the modifications made in the Schedule. 17. Two questions now remain to be dealt with on which submissions were made by learned counsel for the parties. One is as to the scope of Sec.12 (4) of the Act. 17. Two questions now remain to be dealt with on which submissions were made by learned counsel for the parties. One is as to the scope of Sec.12 (4) of the Act. Sec.12 (4) runs as follows:- - "If there is a difference of opinion between the Chairman and the member in regard to any matter, it shall be referred by the Chairman to a Judge of the High Court nominated by the Chief Justice in this behalf, and the decision of such Judge shall be binding on the Tribunal." While making his submissions on this question, learned counsel for the petitioner has drawn our attention to Sec. 429 of the Code of Criminal Procedure, Section 98 of the Code of Civil Procedure and clause 28 of the Letters Patent of this High Court. He has submitted that when there is a difference between two Judges of this Court and reference is made to a third Judge either under Section 98 of the Code of Civil Procedure or clause 28 of the Letters Patent of this Court, the third Judge must agree with either of the two views taken by the two Judges and the case is to be decided according to the decision of the majority, but when there is a reference to a third Judge under Section 429 of the Code of Criminal Procedure on a difference between two Judges of this Court, the opinion of the third Judge need not be confined to the views expressed by either of the two Judges differing and he may decide the entire case according to his own decision and that as the language of Sec.12 (4) of the Act is similar to Sec. 429 of the Code of Criminal Procedure, the Judge of this Court who hears the matter on reference need not confine himself to the opinion expressed by the learned Chairman and the learned Member of the Tribunal on any matter regarding which they have differed. On the other hand, learned counsel for the respondents have submitted that the learn- ed Judge of this Court hearing the reference must confine himself to the view either of the Chairman or of the Member of the Tribunal and cannot take a view which is different from one taken by either of the two. On the other hand, learned counsel for the respondents have submitted that the learn- ed Judge of this Court hearing the reference must confine himself to the view either of the Chairman or of the Member of the Tribunal and cannot take a view which is different from one taken by either of the two. No doubt, the question is an interesting question of law, but, in my opinion, it will not be proper for us to express our opinion on this question. That may embarrass the learned Judge of this Court hearing the reference in the matter of taking his own independent view on this matter. In my opinion, it will be for the learned Judge of this Court hearing the reference to decide the scope of Sec.12 (4) of the Act. 18 Another question which remains to be dealt with now is whether the Tribunal was right in adding as party to the proceeding respondent No. 3 to these writ .applications and whether it should be expunged from the proceedings. While dealing with this matter learned counsel for the petitioner drew our .attention to Sections 9 and 12 of the Act and Rule 9 of the Bihar Land Reforms Rules, 1951. According to him, in view of the language of the aforesaid two sections and the rule only the State and the intermediary are entitled to be heard in the proceeding and no third person can be allowed to intervene and be added as a party to the proceeding. On the other hand, it has been submitted by learned counsel for respondent No. 3 that as it has acquired interest in the mine at Amjhore before and after the reference from respondent No. 2, the State, its presence in the proceeding was necessary so that the State may not have compromised the matter with the petitioner lo its prejudice. In my opinion, it is also not necessary for us to decide this question. That question should also be decided by the learned Judge of this Court before whom the reference is placed for hearing. It may be open for him to hear arguments on behalf of respondent No. 3 on the question of extent of area which should be deemed to have been leased out of the mine of iron pyrites etc. That question should also be decided by the learned Judge of this Court before whom the reference is placed for hearing. It may be open for him to hear arguments on behalf of respondent No. 3 on the question of extent of area which should be deemed to have been leased out of the mine of iron pyrites etc. at Amjhore with the petitioner by the State and the terms in respect thereof on which there is difference between the Chairman and the Member of the Tribunal or not to hear any argument on behalf of respondent No. 3. It has been submitted before us by learned counsel for respondent No. 3 that as a writ application filed by the petitioner against the said order of the Tribunal adding respondent No. 3 a party to the proceeding was summarily dismissed by this Court, the present prayer of the petitioner is barred by res judicata. There cannot be any doubt that the learned Judge of this Court hearing the reference will decide the question of res judicata as well if it is raised before-him. 19. In the result, both the writ applications are allowed in part and the four paragraphs at the end of the decision of the learned Member of the Tribunal which were added by him after he had signed the earlier part of his decision and another paragraph where he has held that limestone mine at Hathni Utni though in fact in operation cannot be held to be in operation in the eye of law for want of notice of the commencement of the operation under Sec.14 of the Indian Mines Act, 1923, are quashed. The Tribunal is further directed to make a fresh reference to this Court under Sec.12 (4) of the Act on the seven matters as mentioned in paragraph 11 of this judgment. In the circumstances of the case, there will be no order as to costs. Shambhu Prasad Singh, J. 20 I agree.