Sunder Lal v. State of Rajasthan — 1994 DIGILAW 239 (RAJ)

Honble MADAN, J; — This special appeal has been preferred against the order of learned Single Judge of this court, dated 7.11.1983 in S.B. Civil Writ Petition No. 39/73, whereby the learned Single Judge observed that the only question which arises for consideration is as to what would be the deadrent for the period between 1972-77 for the mining lease in question which the appellant is supposed to pay the respondent. The learned Single Judge has observed in the impugned order that the petitioner had the alternate remedy of appeal available to him under Rule 43 (2) of the Rajasthan Minor Mineral Concession Rules, 1959 (hereinafter referred to as the Rules of 1959) framed under section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 which the appellant did not avail of. In that view of the matter the learned Single Judge was of the opinion that the contentions advanced by the learned counsel for the petitioner- appellant regarding the provision being ultravires, arbitrary discriminatory and violative of Article 14 of the Constitution of India, cannot be looked into.Consequently,the learned Single Judge disposed of the writ petition with no order as to costs. (2). Being aggrieved by the aforesaid order, the appellant has preferred this appeal which came up for final hearing on the 3.03.1994. (3). The case of the petitioner-appellant in brief, is that he was holding a mining lease for extraction of marble under the Rules of 1959 for an area of 4 sq. miles (approximately 10 sq. kilometers) near village Jillo, Tehsil Neem-ka-thana, District Sikar for a period of five years commencing from 17.01.1967 to 16.01.1972. The appellant applied for the renewal of the lease on the 24th Febraury, 1971 before the expiry of the said lease along with the necessary deposit fee. In his application, dated the 24th Frbruary, 1971 for renewal of the lease, the appellant apprised the State Government with regard to the royalty assessed and finalised by the Government and the dead rent which was paid as follows. S.No. 1 Year2 Quantity of Marble Extracted3 Royalty Assessed Rs.4 Dead Rent Rs.5 1. 17.1.67 to 16.1.68 2859 Tons 10006.50 23.508.00 2. 17.1.68 to 16.1.69 3575 Tons 12509.00 23,508.00 3. 17.1.69 to 16.1.70 3363 Tons 11770.00 23,508.00 4. 17.1.70 to 16.1.71 1950 Tons 6,825.00 23.508.00 (4). S.No. 1 Year2 Quantity of Marble Extracted3 Royalty Assessed Rs.4 Dead Rent Rs.5 1. 17.1.67 to 16.1.68 2859 Tons 10006.50 23.508.00 2. 17.1.68 to 16.1.69 3575 Tons 12509.00 23,508.00 3. 17.1.69 to 16.1.70 3363 Tons 11770.00 23,508.00 4. 17.1.70 to 16.1.71 1950 Tons 6,825.00 23.508.00 (4). During the course of hearing Shri G.K. Garg, learned counsel for the appellant, advanced the arguments by challenging Rule 16(b) of the Rules of 1959 as ultra vires of the Constitution and being violative of Article 14 of the Constitution of India. His contention was three fold. (i) That no opportunity of hearing was provided to the petitioner appellant before increase of deadrent/lease money which was double of the deadrent originally charged i.e. from Rs. 23,508.00 per annum to Rs. 47.016.00 per annum vide Government order, dated the 14.11.1972 which was received by the appellant on 17th November,1972. (ii) That the petitioner-appellant had been discriminated qua other lessesees who were similarly placed and in their case no such increase was done, (iii) That in absence of opportunity of hearing before the increase of lease money, principles of natural justice have been violated. (5). It was further contended by the learned counsel for the appellant that on the 1st January 1973 the appellant had submitted an application before the Government for renewal of the lease confined to the area of 2 sq. miles measuring 384 acres and that remaining area of 1 sq. mile measuring 256 acres be accepted as surrendered with regard to which the petitioner-appellant had submitted the plans and demarcation reports. It is further the case of the appellant that on 2.01.1973 he was provided with an opportunity of hearing by the department on the direction of Honble Minister with reference to his representation and that the appellant had appeared before the concerned authority though his counsel as well as his attorney Shri Shiv Dayal. This fact is clearified in para 19 of the writ petition wherein the appellant has made specific averment to the said effect. This fact is clearified in para 19 of the writ petition wherein the appellant has made specific averment to the said effect. From the perusal of paragraph 20 of the writ petition it becomes abundantly clear that the appellant had voluntarily and of his own accord accepted the aforesaid position, since he had not agreed to surrender part of the area in question but had also felt satisfied with regard to the necessary formalities to be completed by him in furtherance of the execution of the formal agreement. (6). After the expiry of first lease period, the petitioner had applied for second renewal by his application, dated 3rd January 1977 addressed to the Secretary, Mining Department, Government of Rajasthan, Jaipur stating that he may be informed about the renewal of the mining lease by 16th of January, 1977. It is further contended by the petitioner-appellant that since he had not received any information from the respondent regarding the renewal of lease, he stopped paying lease charges and mining operation w.e.f. 17th of January, 1977. (7). We have given our thoughtful consideration to the matter at issue and the contentions advanced by the learned counsel for the parties. (8). In our opinion, the petitioner-appellant having accepted the position by paying lease money as originally fixed and also being fully aware of the implications of the agreement and the renewal charges which will be double the original lease money in case of first renewal, it is not open to the appellant by any stretch of imagination, to contend at a later stage that he is the non-suited, since the lease money is in excess of the original rent. In our view, the principle of estoppel is fully attracted to the facts of the case and the petitioner-appellant cannot be permitted to reprobate and approbate at the same time for the simple reason that he had been enjoying the benefit of the mining lease for a long period. It is not his case that any body had forced the appellant to continue with the mining lease by paying lease money or the renewal charges at his own whims and fancies. (9). It is not his case that any body had forced the appellant to continue with the mining lease by paying lease money or the renewal charges at his own whims and fancies. (9). The contention of the appellant that he was not provided with any opportunity of hearing by the respondent stands belied by his own averment made in para 19 of the writ petition wherein full opportunity of hearing was provided to the petitioner-appellant by the respondent, hence there is no violation of principles of natural justice. He was not only heard fully by the respondent but his representation was also considered and rejected. All this shows that there was proper application of mind by the respondent and since it was not possible to accede to his request, the petitioners representation was rejected, as would be clear from para 22 of the writ petition, the petitioner-appellants requests for renewal of lease and the alternative threat of stopping the mining operation was entirely voluntary at appellants, own volition and that nobody had forced the appellant to continue with the mining lease. It is purely a contractual obligation which the appellant had failed to fulfil and in absence of deposit of renewal charges for availing the facility of mining lease, it does not give any legal or statutory right to the appellant to challenge the same before this court by invoking the writ jurisdiction of this court under Article 226 of the Constitution of India. A perusal of the relevant correspondence and the documents on the record fully show that the appellant at his own accord had agreed for stopping the mining operations with effect from 17.01.1977 and had conveyed the same to the Asstt. Mining Engineer, Sikar on 20.01.1977. Hence, the appellant by his own conduct, act and acquiscence is now estopped and precluded from pleading to the contrary. (10). As a matter of fact, merely because no other person had offered a dead rent/lease money of more than Rs. Mining Engineer, Sikar on 20.01.1977. Hence, the appellant by his own conduct, act and acquiscence is now estopped and precluded from pleading to the contrary. (10). As a matter of fact, merely because no other person had offered a dead rent/lease money of more than Rs. 23,508.00 per annum as originally fixed with regard to the mining lease in question, is no ground for this court to come to, a conclusion that the respondent should reduce the lease money on first or second renewal, since as earlier stated it is purely a contractual obligation between the parties which does not give any corresponding legal or statutory right to the lessee to enforce the same by way of writ jurisdiction of this court under Article 226 of the Constitution of India. (11). In our opinion, there is nothing arbitrary, illegal or irrational in the matter of fixation of assessment and the mining lease and that the appellant has failed to make out any case for interference by this court in exercise of its appellate jurisdiction over the order of learned Single Judge of this court. (12). Learned counsel for the respondent in his reply has placed reliance on Rule 16(b) of the Rules of 1959 and other relevant rules in this regard which empowers the State Government to double the amount in case of its first renewal which was done by the State Government in this case as a condition precedent to the renewal of the mining lease after examining the various aspects of the matter. (13). Learned counsel for the respondent in support of his contention has placed reliance on a decision of the Apex Court in the case of Sudarshan Mineral Co. Ltd. vs. Union of India and another (1), wherein the Apex Court has observed as follows : "As is well settled the power to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith is to be found in sub-section (1) of S. 13." It has further been observed as under : "There is no element of uncertainty in the rule either in regard to the grant of fresh lease or in respect of the renewal. The yearly deadrent to be fixed from time to time by the State Government cannot exceed the limit specified in Chapter IV. The maximum limit is therefore, certain. The yearly deadrent to be fixed from time to time by the State Government cannot exceed the limit specified in Chapter IV. The maximum limit is therefore, certain. To provide for payment of deadrent at a specified rate subject to variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power conferred on the Central Government under S. 13 of the Act. The 4th and 5th points urged on behalf of the appellant therefore, fail." (14). In our view, the learned Single Judge was perfectly right in his conclusion that there was nothing malafide, arbitrary or illegal with regard to the fixation of lease money and for renewal of mining lease. It was open to the petitioner to avail of the benefit which he has failed to do so. (15). From the perusal of the records, we came across the specific undertaking, dated 11.01.1972 in writing recorded on behalf of the contractor/appellant and furnished to the State Government, wherein the said contractor has specifically agreed to in the following terms : "Undertaking I, Sunder Lal Contractor Railway Road, Narnaul have applied for Renewal of my Mining Lease for 4 sq. Miles Area for Marble near village Jillo Tehsil Nim-ka-thana, District Sikar for 10 years from 24.2.1971 on deadrent of Rs. 23,508.00 per annum and the said application is pending for consideration of Govt. and I have continued work in the lease area after 16.1.1972 as such as desired. I hereby undertake that for the period after 16.1.1972 till the renewal application is disposed by the Govt. (i) I shall abide by the terms and conditions of the lease agreement, its transfer deed and Rider agreements and Rajasthan M.M.C.R. 1959. Dated 11.1.1972 SD/- Sunder Lal Contractor" (16). Further as would be evident from the perusal of the above undertaking, it is clear that the petitioner having undertaken to continue with the mining work over the area in question and to abide by the terms and conditions of the lease agreement, he is now estopped from pleading to the contrary. (17). Dated 11.1.1972 SD/- Sunder Lal Contractor" (16). Further as would be evident from the perusal of the above undertaking, it is clear that the petitioner having undertaken to continue with the mining work over the area in question and to abide by the terms and conditions of the lease agreement, he is now estopped from pleading to the contrary. (17). Rule 16 (b) of the aforesaid rules, the petitioner was required to submit renewal application before the expiry of six months of original grant and, therefore, if at all the petitioner was to surrender any part of the lease area, he ought to have submitted the plan and description report of the area to be retained at the time of making the application for renewal as per Rule 11 of the said Rules. In this case renewal was granted on 14.11.1972 on request of the petitioner and the petitioner was fully aware of the rule and the implications of the said renewal. Having once accepted the renewal subject to the terms and conditions of the case, it was not open to the petitioner to challenge the same at a later stage by alleging that he is non-suited as a consequence of the said renewal. In view of the above facts and circumstances, the contention of the petitioner is that he had retained particular area of the lease while surrendering the rest of the area at the time of renewal, cannot be accepted in its letter and spirit and no relief by relaxation of deadrent can be given to the petitioner on this score. (18). It will be further clear from the perusal of para 18 of the writ petition that in fact the petitioner actually submitted his application for the surrender of part of area in question on 1.1.1973 without depositing the renewal charges for the lease in question. From the perusal of the record and the relevant correspondence, we are of the view that the petitioner was offerred full opportunity of hearing and it was only thereafter that the sanction was accorded for the renewal of the lease by the State Government. (19). From the perusal of the record and the relevant correspondence, we are of the view that the petitioner was offerred full opportunity of hearing and it was only thereafter that the sanction was accorded for the renewal of the lease by the State Government. (19). In this connection, it will be pertinent to refer to the decisions of this court in the case of Prabhulal vs. State in S.B. Civil Writ Petition No. 287/67, wherein the learned Single Judge of this court, while disposing of the said matter vide his order, dated 9.09.1970, held that the State Government is fully empowered to increase the deadrent within the limits of the rules and as maximum limit is given in the rule, it is not necessary to fix the deadrent below that limit and the only question is that while fixing the deadrent the State Government should not cross the limit, which is not the case here. (20). Likewise in a similar writ petition, S.B. Civil Writ Petition No. 614/70 in the matter of M/s. Madhya Bharat Mining Industries Gwalior vs. State of Rajasthan, decided on 07.07.1971, the learned Single Judge of this court reiterated the earlier view by holding that the State Government is fully empowered to increase the deadrent within the limits of the rules and under the provisions of Rules of 1959, as held earlier by this court. Hence, keeping in view the aforesaid earlier decisions of this court, it will not be proper for us to arrive at a different conclusion than the view expressed by this court in the earlier judgements referred to above. In this context, it will be relevant to reproduce operative part of the order, dated 9.09.1970 in the case S.B. Civil Writ Petition No. 287/67 which is as under : "Under rule 16(b) of the rules, the State Government can increase the deadrent at the time of the first renewal but the maximum limit has been fixed by the Rules making authority that the deadrent shall not exceed twice the original deadrent. It clearly means that the State Government at the time of renewing the lease for the first time has power to increase the deadrent to the extent of double the original deadrent." (21). It clearly means that the State Government at the time of renewing the lease for the first time has power to increase the deadrent to the extent of double the original deadrent." (21). It is, thus, clear from the above that whenever the maximum limit is prescribed for the deadrent at the time of renewal the State Government, while renewing the lease, the State Government has powers to increase the deadrent to that extent. Here in this case as it was a case of first renewal, the State Government had powers to increase the deadrent up to the limit of original deadrent under rule 16(b) of the Rules of 1959, i.e. exactly double the original deadrent but not exceeding the limits so prescribed. Therefore, the aforesaid increase cannot be assailed on the ground that it is void or in-effective We are further of the view that the mineral property belongs to the Stale Government and it is prerogative of the State Government to formulate such rules in the matter of extraction of minerals including the fixation of the deadrent/ lease price on leasing out the said property to the individuals which is utilised in public interest. In our view, there is nothing contrary to the interest of the public or the public policy. There is nothing obligatory or binding on the lessee that he must continue with the mining lease. If any person is not willing to participate in the said business, he has ample power to surrender that lease granted to him and he should not opt for it. (22). We are, thus, of the considered view that the contentions raised by the learned counsel for the petitioner are not correct being contrary to rule 17 (x) of the said rules of 1959 which is reproduced below : "The lessee shall abide by all existing Acts and Rules enforced by the Government of India or the Government and all such other Acts or Rules as may be enforced from time to time in respect of working of the mines and other matters affecting safety health, convenience of the lessees employees or of the public." (23). As a result of the above discussion, this appeal is dismissed with no order as to costs.