Gordhan Dass v. State of Rajasthan — 1996 DIGILAW 1091 (RAJ)

Honble YADAV, J. – The petitioner has filed the present writ petition seeking a relief to quash the demand notice dated 28.8.88 Annx. 3 to the writ petition demanding dead-rent from 6.11.78 to 5.11.79 amounting to Rs. 8,745.35. (2). Brief facts necessary for disposal of the instant writ petition are that one Shri Govind Ram Khatri was granted a mining lease for mining fullers earth near village Santhan Ki Dhani, District Barmer on 19.4.74. Shri Govind Ram and petitioner Gordhan Dass moved an application to the Government to grant sanction for the transfer of above mining lease in favour of petitioner. The sanction was accorded by the State Government with stipulations that Govind Ram Khatri will arrange settlement of royalty accounts and clear all the dues in respect of the present lease which may accrue till final transfer to Shri Gordhan Dass petitioner. There are stipulations in the sanction that since the transfer deed was to be executed between transferor and transferee an attested copy of the same duly registered should be submitted to the Government as well as to the Director of Mines and Geology, Rajasthan, Udaipur. The transferee Shri Gordhan Dass was to execute an undertaking on the stamp paper worth Rs. 5/- to abide by the terms and conditions of the original lease agreement executed by Shri Govind Ram Khatri a copy whereof is filed and marked as Annx.1 to the writ petition. (3). In pursuance of the aforesaid sanction accorded by the State Government and undertaking given by petitioner Shri Gordhan Dass worked the mines for a pe- riod of about two and half years and paid all the dead-rent and royalty payable on the mineral excavated by the petitioner at the agreed rate of Rs. 15/- per ton and yearly dead-rent of Rs. 22,000/- per annum. (4). It is evident from the averments made in the writ petition that for the period from 6.11.78 to 5.11.79, the petitioner was assessed for royalty at Rs. 29,743 .50 and dead-rent at Rs. 22,000/- and a sum of Rs. 7743.50 being over and above the dead- rent was paid by the petitioner, a copy whereof is filed and marked as Annex. 2 to the writ petition. (5). 29,743 .50 and dead-rent at Rs. 22,000/- and a sum of Rs. 7743.50 being over and above the dead- rent was paid by the petitioner, a copy whereof is filed and marked as Annex. 2 to the writ petition. (5). It is averrred in the writ petition that the petitioner found the mining operations un-profitable, therefore, he surrendered the lease on 18.4.80 and obtai- ned a ``No Dues Certificate in respect of the same from the date of surrender the petitioner ceased to have any right interest or title in respect of the said mining area. (6). It is alleged that the Assistant Mining Engineer, Barmer admitted the fact of surrender of the lease by the petitioner but he re-assessed the petitioner for the dead-rent vide his order dated 28.8.84 for Rs. 38, 489.85 in place of a sum of Rs. 29,743.50 as previously assessed and paid by the petitioner in pursuance of the office order dated 30.8.79. (7). After service of notice, a return has been filed on behalf of respondents denying the averments made in the writ petition. It is averred in the reply that the order impugned dated 28.8.84 has been challenged by way of the present writ petition after in- ordinate delay while the recovery proceedings were initiated in pursuance of the impugned order. It is alleged in the reply that against the order impugned dated 28.8.84 and appeal under Rule 43 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as `the Rules of 1986) is provided but no appeal has been preferred by the petitioner within limitation period. It is also averred in the reply that the petitioner has equally alternative efficacious remedy under Rule 43 of the Rules of 1986 by way of filing an appeal and by way of filing a revision under Rule 47 of the said Rules, therefore, the present writ petition is not maintainable. (8). It is further alleged in the return filed on behalf of the respondents that the order of revision of dead-rent dated 28.8.84 on the basis of which demand notice of recovery has been issued are eminently just and proper and does not require interference under Art. 226 of the Constitution of India. (9). I have heard learned counsel for the parties at length and examined the materials on record critically. (10). (9). I have heard learned counsel for the parties at length and examined the materials on record critically. (10). It is urged by the learned counsel for the petitioner that the revision of dead-rent in the present case was done on 28.8. 84 on the basis of which the respondents intend to make recovery for the period from 6.11.78 to 5.11.79 which is impermissible. It is argued by the learned counsel for the petitioner that there are no provisions to enforce revision of dead-rent with retrospective effect. In support of his aforesaid arguments, the learned counsel for the petitioner Shri B.L. Khatri placed reliance on a decision rendered by a Division Bench of this Court in case of Amar Jeet Singh vs. State of Raj. (1). He also placed reliance on another decision rendered by another Division Bench of this Court in case of Mool Chand vs. State of Rajasthan and Others (2). (11). Learned counsel appearing on behalf of respondents Shri R.L. Jangid refuted the aforesaid arguments and strenuously urged that according to Rule 18(3) of the Rajasthan Minor Mineral Concession Rules, 1977 (hereinafter referred to as `the Rules of 1977) which are applicable in the present case, the respondents are entitled to issue the impugned notice for recovery on the basis of revision of dead-rent assessed by them on 28.8.84 for a span of 5 years period and the span of 5 years period is to be computed from the date of initial grant or from the date of the renewal of the mininh lease. According to Shri Jangid, the revision of dead-rent can be assessed at any time during a period of 5 years and it can be made effective from initial grant of the leases and also from the date of renewal of such mining leases. It is argued by learned counsel for the respondents that in case of Amar Jeet Singh (supra) and in case of Mool Chand (supra) the interpretation of sub-rule (3) of Rule 18 of the Rules of 1977 was not involved, hence, the ratio decidendi laid down in the aforesaid two cases are not applicable in the present case. (12). It is argued by learned counsel for the respondents that in case of Amar Jeet Singh (supra) and in case of Mool Chand (supra) the interpretation of sub-rule (3) of Rule 18 of the Rules of 1977 was not involved, hence, the ratio decidendi laid down in the aforesaid two cases are not applicable in the present case. (12). Before dwelling upon the aforesaid arguments raised at the Bar, I would like to observe that the learned counsel for the parties have admitted that in the present case, Rajasthan Minor Mineral Concession Rules, 1977 are applicable although it has been repealed and has been substituted by Rajasthan Minor Mineral Concession Rules, 1986. It is further admitted by the learned counsel for the parties that the substituted Rules of 1986 are made enforceable with effect from 4.3.1986. Neither the plea of laches nor the plea of alternative remedy are pressed, hence, I propose to decide the writ petition on merit. (13). A careful scrutiny of the mandatory provisions envisaged under sub-rule (3) of Rule 18 of the Rules of 1977 reveals that it is not para materia with the present Rules of 1986. In order to appreciate the controversy involved in the present case, the provisions of sub-rule (3) of Rule 18 of the Rules of 1977 are quoted here in below :– ``18. Conditions : The following conditions shall be included in every mining lease and if they are not included, shall be deemed to have been included therein :– (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) The leases shall also pay for every year, such yearly dead-rent within the limits specified in Second Schedule as may be fixed by the Government in this behalf in quarterly instalments or as fixed by the Government, in advance, and if the lease permits the working of more than one mineral the State Government may charge separate dead rent for each mineral provided that the mining of one mineral shall not obstruct the mining of another mineral; Provided further that the Government may revise the rate of dead-rent after every five years from the date of the grant of the lease and the lessee shall be liable to pay such revised dead-rent; Provided also that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever is higher in amount but not both. (14). It is evident from the first proviso of sub-rule (3) of Rule 18 of the Rules of 1977 that the Government may revise the rate of dead-rent after every 5 years from the date of grant of the lease and the lessee shall be liable to pay such revised dead-rent, whereas, first proviso of sub-rule (3) of Rule 18 of the Rules of 1986 contemplates 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. In Second Proviso of sub-rule (3) of Rule 18 of the Rules of 1977, it is provided that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever is higher in amount but not both, whereas, in second proviso of sub- rule (3) of Rule 18 of the Rules of 1986, it is contemplated that the competent authority may revise the dead-rent after every 5 years from the date of initial grant or of renewal of mining lease in accordance with the formula mentioned therein. Sub-rule (3) of Rule 18 of the Rules of 1986 clearly provides method to assess and calculate revised dead-rent whereas under sub-rule (3) of Rule 18 of the Rules of 1977, there is no provision providing method for assessing the revised dead-rent. Third proviso of sub- rule (3) of Rule 18 of the Rules of 1986 is the same as second proviso of sub-rule (3) of Rule 18 of the Rules of 1977. (15). In my considered opinion, although the provisions of sub- rule (3) of Rule 18 of the Rules of 1977 are not pari materia to sub-rule (3) of Rule 18 of the Rules of 1986, yet, revision done either on the basis of formula given in the second proviso of sub-rule (3) of Rule 18 of the Rules of 1986 or without applying that formula re- vising the dead-rent under the old Rule of 1977 on subjective satisfaction of the revising authority would not make any difference about the prospective nature of revision of dead-rent assessed by an authority under either of the aforesaid Rules. (16). For deeper understanding of the case, it is to be noted that sub-rule (3) of Rule 18 of the Rules of 1977 and sub-rule (3) of Rule 18 of the Rules of 1986 have been framed by the Rule Making Authority under Sec. 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as `Act No. 67 of 1957) in exercise of its sub-ordinate legislative authority. Neither under the provisions of usb-rule (3) of Rule 18 of the Rules of 1977 nor under the provisions of sub-rule (3) of Rule 18 of the Rules of 1986, retrospectivity is envisaged. No such retrospectivity is contemplated ; under Sec. 15 of Act No. 67 of 1957 as well while delegating legislative power to the Rule Making Authority to frame either the Rules of 1977 or the Rules of 1986. Because the characteristics of the Rules of 1977 and the Rules of 1986 both are of sub-ordinate legislation, therefore, these Rules would operate prospectively and not retrospectively unless Act No. 67 of 1957 authorised the Rule Making Authority to make such Rules which may have retrospective effect. (17). It is pertinent to mention here that accrural of right of revision of dead-rent is one thing and its practical revision by the mining department is another thing. (17). It is pertinent to mention here that accrural of right of revision of dead-rent is one thing and its practical revision by the mining department is another thing. Accrual of right to revise dead-rent is not conterminous with the practical revision of dead-rent. Former speaks about existence of right to revise dead-rent whereas latter speaks about exercise of such right after taking into account definable formula. Inability to finalise the assessment of dead-rent by the mining department when such right accrued to them in the year 1979 does not authorise them in the present case to assess the dead-rent on 28.8.84 and to recover the same from the petitioner for the period from 6.11.78 to 5.11.79 by giving the revision of dead- rent dated 28.8.84 retrospective effect. The Revision of dead-rent done by the mining department on 28.8.84 would be valid for future five years and on the basis of the said assessment, no recovery can be made from the petitioner for the period from 6.11.78 to 5.11.79. If the argument of learned counsel for respondents is accepted to the effect that the respondents are entitled to make applicable the revision of dead-rent done by them on 28.8.84 for recovery of dead-rent from the petitioner for the period from 6.11.78 to 5.11.79, then it would tantamount giving retrospectivity to the assessment of dead-rent which is not envisaged under sub- rule (3) of Rule 18 of the Rules of 1977. Thus, the recovery sought to be made by the respondents against the petitioner is per se illegal and impermissible. (18). Consequently, the instant writ petition is allowed and demand notice dated 28.8.84 Annx. 3 to the writ petition demanding the dead-rent from the petitioner for the period from 6.11.78 to 5.11.79 on the basis of revision of dead-rent on 28.8.84 is hereby quashed. (19). Both the parties are directed to bear their own costs.