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1990 DIGILAW 251 (RAJ)

Amarjeet Singh v. State of Rajasthan (67)

1990-04-02

M.C.JAIN, R.S.VERMA

body1990
M.C. JAIN, Actg. CJ— By this writ petition the petitioner seeks to quash the order dated 10.11.89 Annex. 2 whereby revision in respect of dead rent was made for the periods commending from 17.3.80 to 16.3.90 and also the demand under Annex. 3 in respect of five years commencing from 17.3.85 to 16.12.89. The petitioner confines the writ petition to the challenge in respect of Annexures 2 and does not challenge the vires of sub-rule (3) of rule 18 of the Minor Mineral Concession Rules, 1977, second proviso to rule 18(3) of the Rajasthan Minor Mineral Concession Rules, 1986. 2. The petitioners case is that the petitioner was granted mining lease by the Mining Engineer, Jodhpur, This lease was renewed with effect from 17.3.80 for a period of ten years. At the time of renewal of the lease, Rajasthan Minor Mineral Concession Rule, 1987, were in force and thereafter with effect from 4.3.86, Rajasthan Minor Mineral Concession Rules, 1986 came into force, The petitioners case is that the dead rent could be revised after every five years from the date of grant of the lease or from the date of renewal of the Lease. According to the petitioner, the renewed lease shall be governed by the provisions of 1977 Rules, till the 1986 a Rules came into force. According to 1986 Rules, Rules of 1977 were repealed and actions taken under 1977 Rules were saved. The petitioners further case is that the power of revisions conferred by second proviso to sub- rule (3) of rule 18 can be exercised by the competent authority from the date of initial grant or of renewal of the mining lease in accordance with the formula given in the second proviso. But this power is only prospective in nature, The revised rate would be applicable from the date of revision and it can not be given retrospective effect. According to the petitioner, revision took placed on 10.11.89 in respect of the previous years commencing from 17.3.85 to 16.3.89. The revised dead rent cannot be charged from the petitioner. Revision could have taken place after five years but in the present case, in the span of five years commencing from 17.3.85, the revision was made as late as 10.11.89, so the revised rate was operative only prospectively and not retrospectively with effect from 17.3.85. The revised dead rent cannot be charged from the petitioner. Revision could have taken place after five years but in the present case, in the span of five years commencing from 17.3.85, the revision was made as late as 10.11.89, so the revised rate was operative only prospectively and not retrospectively with effect from 17.3.85. Therefore, the demand created against the petitioner vide Annexure 3 in pursuance of Annexure 2 is illegal and to the extent that it has created demand in respect of the first four years commencing from 17.3.85 to 16.3.89, the demand is bad in law. 3. Mr. P.K. Bhansali, learned counsel for the respondents submitted that the petitioner had filed writ petition before this Court challenging the rate of royalty and there was a stay order obtained by the petitioner, so the assessment of royalty for the years prior to 17.3.85 could not be finalised and assessment proceedings relating to royalty were finalised as late as 4.11.89 and so after finalisation of the assessment orders, amount of royalty could be fixed on 10.11.89. Apart from that, the revision would be for the span of five years and the span of five years would begin from the date initial grant or from the date of renewal of the mining case and for any span of five years, at any time during the span revision can be ordered to be effective from the date of commencement of the span of five years. So under the second proviso to sub-rule (3) of rule 18, the demand has been rightly created on the basis of revision made on 10.11.89. 4. The main question that arises for consideration is as to whether the revision of dead rent made on 10.11.89 would be effective from that date or it would be effective for the earlier years of the span of five years. Admittedly, the span of five years would commence from 17.3.85. So the question would be as to whether revision would take effect from 17.3.85. This question has to be determined as a matter of law and whether non-finalisation of assessment of the royalty would have any effect with regard to the right to recover dead rent from the date when the earlier span of five years came to an end. 5. This question has to be determined as a matter of law and whether non-finalisation of assessment of the royalty would have any effect with regard to the right to recover dead rent from the date when the earlier span of five years came to an end. 5. Sub-rule (3) of rule 18 runs as under:- The lessee shall also pay for every year such yearly dead rent as may be fixed by the Government in quarterly instalments in advance, and if the lease permits the working of more than one mineral, the State Government shall not charge separate dead rent in respect of each mineral: Provided that the yearly dead rent at the time of initial grant shall be according to the rates specified in Schedule II. The rates specified in Schedule II shall, however, not be applicable at the time of revision of dead rent Provided further that the competent authority may revise dead rent after every 5 years from date of initial grant or of renewal of the mining lease in accordance with the following formula :- Revised Dead rent-Existing dead rent 40% of Existing dead rent Average excess royalty of the first four years of each span of 5 years: Provided further also that the lessee shall be liable to pay either dead rent or royalty in respect of each mineral -whichever is higher but not both." A perusal of second proviso would reveal that the competent authority is authorised to revise dead rent after every five years from date of initial grant or of renewal of the mining lease in accordance with the formula. In the formula, what is provided is that every excess of the first four years of each span of five years is to be added. The formula, in our opinion, envisages that for the earlier span of five years, royalty of first four years would be taken into consideration and average excess would be arrived at and that would be added in the revised dead rent. The formula would apply when such average excess can be arrived at. Till that is done, formula cannot be implemented. This is the practical aspect of the provision contained in the proviso second. The principal question would be as to whether it can be said on the basis of the formula that the competent authority is authorised to revise the dead rent from a back date. Till that is done, formula cannot be implemented. This is the practical aspect of the provision contained in the proviso second. The principal question would be as to whether it can be said on the basis of the formula that the competent authority is authorised to revise the dead rent from a back date. The revision of dead rent would operate prospectively and not retrospectively under the rules which are in the nature of subordinate legislation. By subordinate legislation that is under the second proviso of Rule 18(3), power has been conferred on the competent authority to revise dead rent. Subordinate legislation itself does not make any provision for giving effect to revision of dead rent retrospectively. Even that would have been open to challenge as subordinate legislative authority has no such power unless retrosepectivity is envisaged under the main statutory provision. Such a power is not shown to have been conferred on the subordinate legislative authority. It has not been pointed out to us that under any provision of the Rajasthan Mines and Minerals (Regulation and Development) Act, 1957, such a power has been conferred on the subordinate legislative authority i.e. under the rule making power contained in Sec. 15 of the said Act, thus, as a matter of law, we are of the opinion that the competent authority while exercising power under the second proviso has no authority to revise dead rent from a back date. Even coming to the facts of the case, it may be stated that the previous writ petition was allowed on 10.2.86 and immediately thereafter, assessments of the years commencing from 17.3.80 to 17.3.85 could have been finalised. Inability to finalise the assessments relating to royalty, in our opinion, would not confer any power on the competent authority to revise dead rent after a lapse of four years during the current span on the basis that assessment of royalty of first four years could not take place earlier. Thus, the demand created in respect of the years commencing from 17.3.85 to 16.3.86, 17.3.86 to 16.3.87, 17.3.87 to 16.3.88 and 17.3.88 to 16.3.89 is without authority and is not warranted by the provisions contained in proviso second to sub-rule (3) of rule 18. In respect of these four years, the respondents are not entitled to demand the dead rent at the revised figure. In respect of these four years, the respondents are not entitled to demand the dead rent at the revised figure. The respondents can only charge dead rent as it existed prior to 17.3.85. 6. Accordingly, in the light of what we have considered above, this writ petition is allowed and Annexures 2 and 3 are declared illegal to the extent as indicated above. To make it clear in respect of the four years stated above, the petitioner would be liable to pay dead rent according to the old amount and in respect of the period commencing from 17.3.89, the petitioner would be liable to pay dead rent at the revised amount. In case, excess amount of dead rent has been paid by the petitioner, the same shall be refunded to him. The excess amount liable to be refunded, shall be paid within two months failing which, the petitioner would be entitled to interest @ 12% p.a. from the date of deposit. There will be no order-as to costs.