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1996 DIGILAW 1143 (RAJ)

Nalin Dosi v. State of Rajasthan

1996-10-07

R.R.YADAV

body1996
Honble YADAV, J. – The petitioner has filed the instant writ petition seeking a relief for quashing the order dated 8.9.92 Annx. 3 to the writ petition enhancing the dead-rent from Rs. 6500/- to Rs. 25,000/- per annum. (2). Facts of the present case are not disputed between the parties. Admittedly, the petitioner was granted a mining lease for mineral Marble in village Ambav Tehsil Dhariawad District Udaipur for an area measuring 100 x 100 Mts. by order dated 24.3.92 Annx. 1 to the writ petition. (3). It is evident from the order dated 24.3.92 Annx. 1 to the writ petition that the annual dead-rent was fixed at the rate of Rs. 6,500/- per annum which was liable to be revised after five years in accordance with the provisions of sub-rule (3) of Rule 18 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as `the Rules of 1986.) (4). It appears that the State Government vide its Notification dated 10.6.92 amended the rates of dead-rent contained in Schedule II appended to the Rules of 1986 in exercise of the powers conferred under sub-rule (3) of Rule 18 of the Rules of 1986. The rate of dead-rent for Marble was revised by the State Government vide Notification dated 10.6.92 from Rs. 6,500/- to Rs. 25,000/- per annum for an area measuring 100 x 100 Mts. This enhancement has been made w.e.f. 10.6.92 by computing the dead- rent at the rate of Rs. 25/- per 10 Sq. Mts. Whereas the rate of dead-rent mentioned in the lease Agreement Annx. 2 to the writ petition was levied at the rate of Rs. 6/- per 10 Sq. Mts. (5). I have heard learned counsel for the parties and perused the materials available on record. (6). According to the learned counsel for the petitioner, the lease Agreement Annx. 2 to the writ petition was executed between the petitioner and the State Government on 11.5.92 and the same was registered on 9.7.1992. Since the lease deed was admittedly executed on 11.5.92, therefore, the rates of dead-rent cannot be enhanced or revised for a period of five years as envisaged under sub-rule (3) of Rule 18 of the Rules of 1986. (7). Learned counsel for the respondents Mr. Since the lease deed was admittedly executed on 11.5.92, therefore, the rates of dead-rent cannot be enhanced or revised for a period of five years as envisaged under sub-rule (3) of Rule 18 of the Rules of 1986. (7). Learned counsel for the respondents Mr. R.L. Jangid refuted the aforesaid argument and it is urged before me that under Rule 20 of the Rules of 1986, the lease Agreement in the present case will commence not from the date of its execution but from the date of its registration. It is also urged by learned counsel for the respondents that since the lease agreement in the present case was registered on 9.7.92 and the dead-rent was revised in Schedule II on 10.6.92, therefore, even in accordance with sub- rule (3) of Rule 18 of the Rules of 1986, the respondents are entitled to charge at the rate of Rs. 25,000/- per annum as dead- rent from the petitioner. (8). An identical question came up for consideration before me in case of Gordhan Dass vs. State of Raj. & Ors. (1), wherein paragraph 17, it was held, which reads thus :– ``For deeper understanding of case, it is to be noted that sub-rule (3) of Rule 18 of 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 sub-rule (3) of Rule 18 of the Rules of 1977 nor under the provisions of sub-rule (3) of Rule 18 of the Rules 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 prosectively and not retrospectively unless Act No. 67 of 1957 authorised the Rule Making Authority to make such Rules which may have restrospective effect. (9). Because the characteristics of the Rules of 1977 and the Rules of 1986 both are of sub-ordinate legislation, therefore, these Rules would operate prosectively and not retrospectively unless Act No. 67 of 1957 authorised the Rule Making Authority to make such Rules which may have restrospective effect. (9). Learned counsel for the respondents urged before me that ratio of the decision rendered by this Court in case of Gordhan Dass (supra) is not attracted in the present case. According to Mr.R.L. Jangid, in case of Gordhan Dass (supra), the question involved was about method of calculation of dead-rent in an individual lease-deed as envisaged under sub-rule (3) of Rule 18 of the Rules of 1986 whereas in the present case, the dead-rent has been revised by the State Government vide Notification dated 10.6.92 under Schedule II appended to the Rules of 1986 which is applicable to all Mining Operators. Suffice it to say that the aforesaid argument of the learned counsel for the respondents is fallacious and as such untenable. (10). It is to be noticed that revision of dead-rent under sub- rule (3) of Rule 18 of the Rules of 1986 in an individual leased area is done by an officer of the State Government on the basis of formula enumerated under the said Rules whereas revision of dead-rent in Schedule II appended to the Rules of 1986 is done by the State Government for general application in the State of Rajasthan to all leased area as contemplated under the said Rules. (11). Thus, source of revision of dead-rent in an individual leased area by an officer of State Government as well as source of revision of dead-rent by the State Government itself under Schedule II both are regulated by mandatory provisions envisaged under sub-rule (3) of Rule 18 of the Rules of 1986, therefore, I have no hesitation to hold that as in case of revision of dead-rent in an individual leased area cannot be given retrospective effect similarly after execution of lease- dead, the State Government cannt be allowed to recover dead-rent from a lessee on the basis of revision done by it in Schedule II of the Rules of 1986 after execution of lease-deed by way of giving retrospective effect to its revision of dead-rent. The ratio of paragraph 16 of the case of Gordhan Dass (supra) is fully applicable to the facts and circumstances of the present case on hand and an argument contrary to it is not acceptable. (12). I see no reason and logic to differ from the ratio decidendi laid down in case of Gordhan Dass (supra), hence, it is reiterated. I am of the opinion that revision by the State under Schedule II appended to the Rules of 1986 cannot be given retrospective effect. In fact, it would always operate prospectively in absence of any specific delegation of power under Act No. 67 of 1957 authorising the Rule Making Authority i.e. State of Rajasthan to make such Rules, which may have retrospective effect. (13). It is next contended by the learned counsel for the respondents Mr. R.L. Jangid that question of giving retrospectivoty does not arise, in as much as, under Rule 20 of the Rules of 1986, a lease becomes operative from the date of its regis- tration and not from the date of its execution. Since in the present case, admittedly, the lease-deed was executed on 11.5.92 and the same was registered on 9.7.92 whereas the dead-rent in Schedule II was revised by the State Government on 10.6.92, therefore, no question of retrospectivity arises in the present case. I am not convinced with the aforesaid argument of learned counsel for the respondents for the reasons given herein below. (14). A close scrutiny of Rule 20 of the Rules of 1986 throws a flood of light that its provisions are not happily worded. For deeper understanding of the present case, the provisions of Rule 20 of the Rules of 1986 are reproduced below :– ``20. Currency of lease : The currency of lease shall be from the date of execution of the lease agreement unless otherwise stated. The execution shall include registration of the document also. The lessee shall have no right to continue work or accumulate stock on or after the date of termination of lease or its earlier determination, unless otherwise permitted by the Government or the competent authority. (15). The execution shall include registration of the document also. The lessee shall have no right to continue work or accumulate stock on or after the date of termination of lease or its earlier determination, unless otherwise permitted by the Government or the competent authority. (15). First sentence of the aforesaid Rule speaks about from the date of execution of the lease agreement unless otherwise stated meaning thereby in such cases, the lease agreement shall be operative from the date of its execution unless otherwise stated but in the second sentence, `the execution shall include registration of the document also is added. The aforesaid addition under Rule 20 of the Rules of 1986 runs counter to the mandatory provisions postulated under Sec. 47 of the Indian Registration Act, 1908. (16). For argument sake, even if the aforesaid addition of Rule 20 of the Rules of 1986 is capable of two interpretations, I prefer to interpret in favour of the petitioner and hold that in the mining cases, the lease-deed would be operative from the date of its execution and not from the date of its registration unless otherwise expressly stated in lease-deed. In the present case on hand, nothing has been shown by the learned counsel for the respondents that there was any stipulation in the lease-deed to the effect that it would be operative from the date of its registration and not from the date of its execution. (17). It is pertinent to mention that in similar circumstances, the Central Government has also framed Rules regarding grant of mining leases where under sub-rule (2) of Rule 31 of the Mineral Concession Rules, 1960, it is clearly provided that the date of the commencement of the period for which a mining lease is granted shall be the date on which the deed is executed under sub-rule (1) of the said Rules. Thus, under the Mineral Concession Rules, 1960, a lease-deed becomes operative from the date of its execution and not from the date of its registration. In my view, the provisions of sub-rule (2) of Rule 31 of the Mineral Concession Rules, 1960 can be safely used as a key to open the lock of ambiguity of Rule 20 of the Rules of 1986. (18). In my view, the provisions of sub-rule (2) of Rule 31 of the Mineral Concession Rules, 1960 can be safely used as a key to open the lock of ambiguity of Rule 20 of the Rules of 1986. (18). Learned counsel for the petitioner has invited my attention towards a decision rendered by Division Bench of this Court in case of Sugan Chand Gupta vs. State of Raj. & Ors. (2), wherein a similar situation about enhancement of dead-rent from Rs. 25,000/- to Rs. 68,000/- per annum was questioned and at the time of hearing, it was brought to the notice of the Division Bench of this Court that after enhancing the dead-rent from Rs. 25,000/- to Rs. 68,000/- per annum, the Director, Mines and Geology, Rajasthan, Udaipur vide his order dated 13.5.85 clarified that leased-deeds which have been executed prior to 1.9.82 shall be charged under the old rates i.e. Rs. 25,000/- per annum towards dead-rent and the enhanced rates of Rs. 68,000/- revised in Schedule II subsequently after execution of lease-deed will not be applicable. In that case, the enforceability of the revised dead-rent in the Schedule II was computed from the date of execution and not from the date of registration. (19). Similarly, in the present case also, the Director, Mines and Geology, Rajasthan, Udaipur intimated to all the authorities sub-ordinate to him in the State of Rajasthan that the Government has reiterated its previous decision of the order dated 13.5.85 about subsequent revision of dead-rent after execution of lease- deed, which is apparent from perusal of Circular produced by learned counsel for the petitioner Mr. D.D. Thanvi during the course of argument, which is not being refuted by learned counsel for the respondents. (20). As a result of the afore-mentioned discussion, the instant writ petition is allowed and the order dated 8.9.92 Annx. 3 to the writ petition is hereby quashed. Both the parties are directed to bear their own costs.