Krishna Murari Goyal v. State Of Rajasthan And Others

P.P Naolekar, J.:— The two writ petitions involve similar questions of law and facts, therefore, they are being disposed of by this common judgment.

2. Facts in writ petition No. 825 of 1981 are that a notification was published in Rajasthan Gazette dated 23.10.1969 by Assistant Mining Engineer, Alwar inviting persons to bid in auction for the plots for mining lease. The appellant Kishan Murari was granted mining lease by order dated 8.1.1970 on annual dead rent of Rs. 1001 for a period of five years. The formal deed of lease agreement was executed on 20.2.1985 The appellant was granted renewal of the lease for a further period of five years on double the amount of dead rent i.e Rs. 2002 per year. The Rajasthan Minor Mineral Concession Rules, 1959 were repealed and the Rajasthan Minor Mineral Concession Rules, 1977 (hereinafter to be referred to as ‘the Rules of 1977) were promulgated with effect from 10.6.1977 In pursuance of the Rules of 1977 the State Government vide order dated 20.6.1978 extended the period of lease in place of 20.2.1975 to 20.2.1980 to 20.2.1975 to 19.2.1985 i.e for a period of ten years with the condition that the dead rent would be revised after every five years. The State of Rajasthan vide its order dated 9.3.1981 revised the annual dead rent w.e.f 20.2.1980 from Rs. 2002 to Rs. 1,91,951.

3. Writ petition no. 2263 of 1987 was filed challenging the enhancement of dead rent fixed at Rs. 3,03,834 per annum for the period 20.2.1985 to 19.2.1990 It is these notices demanding dead rent at enhanced rate which were challenged in two writ petitions. The matter was placed before the Division Bench and the Bench has noticed an apparent conflict in the decisions rendered in Roshanlal v. State of Rajasthan (1) and in Hari Shanker v. State of Rajasthan (2), Bal Mukand Arora v. State of Rajasthan (3) and Atma Ram Bilochi v. State of Rajasthan (4) and referred the matter to the larger bench as the Division Bench was of the opinion that the judgment rendered by the Division Bench in 37/81 Roshan Lal v. State requires consideration by the larger Bench. That is how the matters came to be heard by the Full Bench.

4. The real question involved in these cases is whether the State Government has power to increase at the time of renewal, the dead rent beyond what is prescribed in Schedule II of the Rules of 1977 for the mines given in auction. Before we consider the issue involved in these cases, we will refer to the decisions in which the Division Bench found an apparent conflict. In Roshan Lal's case (supra) two questions were raised, namely, (i) whether the State Government derives power under Section 15(1) of the Mines & Minerals (Regulations & Development) Act, 1957 of framing rules regulating dead rent of mining lease? (ii) if the State Government has the power of framing rules for imposition of the dead rent, was it authorised by law to increase yearly dead rent at the time of renewal beyond maximum limit of dead rent prescribed in Schedule II to the 1977 rules? The Division Bench has upheld the right of State Government to frame rules in exercise of the powers under Section 15(1) of the Act of 1957 in regard to the dead rent. The question is no longer in dispute in view of decision of the Supreme Court in D.K Trivedi and Sons v. State of Gujarat (5). As regards point no. 2 the Division Bench has restricted State's right to impose dead rent to the maximum provided in Schedule II of the Rules of 1977. It is only in the last paragraph that the Division Bench has noticed that certain mining leases were granted by auction as provided under Rule 21 of the Rules of 1977 and it has been held that the maximum limit of dead rent under Schedule II has no application to the leases granted under Rule 21 of the Rules of 1977. We do not find any elaborate discussion in regard to the fixation of dead rent to the mining leases under Rule 21. In Bal Mukand Arora v. State of Rajasthan (supra) and Atma Ram Bilochi v. State of Rajasthan (supra), the question was not really in regard to the mining leases granted under Rule 21 by auction or tender.

5. In Hari Shanker's case (supra), petitioner being highest bidder was given mining lease in auction. Lease was given only for three years. Petitioner asked for extension of period upto five years and further for renewal of the lease for same period, which was not accepted by the State. That lead to filing of the petition. His contention was that the lease in question was granted to him under Rule 30 of the Rajasthan Minor Minerals Concession Rules, 1955 (for short ‘the Rules of 1955’) which provides for lease for a statutory period of five years at the initial stage of grant but gives an option to lessee to opt for a shorter period, if he so desires. The Government was, therefore, legally bound to grant lease to him initially for five years. The rule further provided for a right of lessee for renewal of the lease for another five years with a further right of renewal for the same period if the lessee furnishes certain guarantees as provided in the rule. Thus according to the petitioner, under R. 30 he was entitled for an extension of period of the lease by two years to make it for five years and for further renewal of the lease for same period.

6. Reply of the State was since the lease in question was granted by public auction under Rule 33 of the Rules of 1955, the Government had a right to fix the period and Rule 30 has no application in such leases. Point for consideration by the Division Bench was whether the petitioner as a matter of right, entitled for an extension of renewal of period of the lease and whether the respondents had committed any violation of the relevant rules in refusing him those reliefs. Rule 30 falls under Chapter IV of the Rules of 1955 whereas Rule 33 is embodied in Chapter V. The Division Bench noted that most of the general rules pertaining to grant of mining leases for minerals were embodied in Chapter IV of the Rules of 1955. Chapter V refers to the grant of mining leases and royalty collection contract by auction or by inviting tenders or by other methods. In Chapter V there is no other provision dealing with the period of leases granted as a result of tender or public auction and thus it is necessary that these two chapters are read together. The rules regulating grant of mining leases in general are embodied in Chapter IV which also governs the mining leases granted under Chapter V, namely by inviting tenders or by public auction had, therefore, even though the leases were granted by public auction, application of R. 30 was not excluded. The Division Bench upheld the contention of petitioner holding that Rule 30 was applicable to the leases granted by auction or by tenders. It is clear from the facts involved in the case and the decision rendered, that there was no occasion for the Division Bench to consider different dead rents being fixed for mining leases granted on an application or on the basis of an auction or tender at the time of initial grant or renewal.

7. The aforesaid decision was confirmed by the Supreme Court in State of Rajasthan v. Harishanker Rajendrapal (6), wherein it has been held that Chapter IV of the rules deals with grant of mining leases and consists of Rules 19 to 32, Chapter V deals with grant of mining leases and royalty collection contracts by auction or by inviting tenders or by other methods and consists of Rules 33 to 42. A comparison of provisions of the rules in Chapter IV and those in Chapter V shows that all the incidents for grant of a mining lease contemplated and provided for in Chapter IV are not provided for in Chapter V. For the aforesaid reason Chapter IV was made applicable to the leases given in Chapter V. The court was not required to consider as to what shall be the dead rent at the time of initial grant of mining lease by auction or by inviting tenders or at the time of its renewal because there was specific provision for fixation of dead rent at the time of initial grant under Rule 33(2) of the Rules of 1955 providing for determination of dead rent more than as prescribed in Schedule II to the rules and no rule like Rule 21 of the Rules of 1977 providing for determination of dead rent at the time of renewal. The Apex Court has said that matters not provided for by the rules in Chapter V with regard to mining leases will be covered by provisions relating to those matters in Chapter IV since these provisions deal with the essential incidents affecting grant of mining leases. The court was not considering provision like Rule 21 which provides for determination of dead rent at the stage of initial grant and also at the time of renewal excluding applicability of Schedule II of the Rules of 1977.

8. Thus there appears, to us, no conflict in the view taken in Hari Shanker v. State of Rajasthan (supra) which was confirmed by the Supreme Court in State of Rajasthan v. Harishanker Rajendrapal (supra) and in Roshanlal v. State of Rajasthan batch of petitions (supra), Sub Rule (2) of Rule 21 of the Rules of 1977 is a new provision which does not restrict application of other provisions of the Rules of 1977 except applicability of Schedule II in fixation of dead rent to the mining leases given by the procedure of inviting tenders or by auction. We have already said that in Roshanlal's case (supra), true import and extent of applicability of Rule 21 was not elaborately discussed. We, therefore, propose to do so since the matter is placed before us for the purpose.

9. Under the scheme of the Rules of 1977 a mining lease can be granted or renewed on an application moved under Rule 5 of the Rules for grant or for renewal of the same. Similarly under Rule 21 the mining lease can be granted by auction or tender. Thus the State rule contemplates grant of mining lease either on an application made to the mining Engineer/Assistant Mining Engineer in Form No. 1 for settlement of mines or by public auction or by inviting tenders to be submitted for acceptance by the authority competent to grant such lease. Under Rule 16 it has been provided that the period for which a mining lease would be granted shall be ten years unless the applicant himself desires for a shorter period which is subject to the proviso that the dead rent shall be revisable after five years. Rule 18 is in regard to the conditions which shall be included in every mining lease and if they are not so included, shall be deemed to have been included therein. Condition No. (3) of Rule 18 reads that “the lessee shall also pay for every years, 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…”. Proviso to Rule 18(3) lays down that the Government may revise the rate of dead rent after every five years from the date of grant of the lease and the lessee shall be liable to pay such dead rent. Further it says 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. Thus the maximum payment of dead rent will be as provided under Schedule II of the Rules of 1977. The dead rent is subject to revision after every five years from the date of grant of the lease and not before that. The lessee is either required to pay dead rent or royalty whichever is higher, but not both. R. 21, which is the subject matter of controversy in these petitions reads, thus:—

“21. Grant of mining lease by auction or tenders.—(1) Notwithstanding anything contained in these rules, any mineral deposit may be leased out by public auction or by inviting tenders to be submitted for acceptance by the authority competent to grant the lease.

(2) Notwithstanding anything contained in the Schedule II, in such case the annual dead rent shall be determined by the tender or the bid offered as the case may be and such dead rent shall be subject to revision as per provisions of these rules. Other terms & conditions of the lease shall be in accordance with Rule 18 of these Rules.

(3) Mining lease by public auction or tender shall be granted only in such cases as the Govt. may by a general or a special order direct.” Sub Rule (1) of Rule 21 begins with non obstante clause i.e notwithstanding anything contained in the rules the mineral deposit may be leased out by public auction or by inviting tenders. This is different than grant of a mining lease on the basis of an application moved. Mining lease by public auction or by tender can be given only when there is a government order in general or special. Sub Rule (2) of Rule 21 also begins with non obstante clause which says that notwithstanding anything contained in Schedule II, the annual dead rent shall be determined by the tender or bid offered, as the case may be, and such dead rent shall be subject to revision as per the provisions of these rules. Other terms and conditions of the lease shall be in accordance with Rule 18 of these rules, Schedule II of the Rules of 1977 provides for minimum and maximum rates of dead rent chargeable on the basis of extent of area held under mining lease.

10. It is submitted by the counsel for petitioner Mr. Mehta, that under sub-rule (2) of Rule 21 initial dead rent for grant of a mining lease on public auction shall be fixed as offered by the bidder and it would not be restricted to Schedule II, but on revision at the time of renewal it shall be as provided under Schedule II of the Rules of 1977 i.e to say that the dead rent on renewal cannot be fixed more than what has been prescribed in Schedule II. He has further urged that if levy of dead rent is not controlled by Schedule II then it will be left to the sweet will of the officials of the State Government to fix the dead rent at the time of renewal as they feel, which shall be an exercise of arbitrary powers, unguided and uncontrolled by the rules. The interpretation which has been put by the petitioner, could only be the reasonable interpretation which can be given to Sub Rule (2) of Rule 21. On the other hand it is submitted by the counsel for State Mr. Kamlakar Sharma, that Sub Rule (2) of Rule 21 authorises the State Government to fix the dead rent at the time of renewal beyond Schedule II of the rules. Determination of dead rent at the time of initial grant or at the time or renewal, is not controlled by Schedule II. Conferment of discretionary powers upon the executive authorities is not unbridled but controlled by the circular issued by the State on 9.8.1979 and later by provisions of the Rajasthan Minor Mineral Concession (Amendment) Rules, 1981.

11. Sub Rules (1) and (2) of Rule 21 begins with non obstante clause. Sub Rule (1) is very clear in its term under which mineral deposit may be leased out by public auction or by inviting tenders although the normal method of lease provided under the Rules of 1977 is by way of an application. Sub Rule (2) causes some difficulty because of the words used therein “…such dead rent shall be subject to revision as per provisions of these rules” and “Other terms & conditions of the lease shall be in accordance with Rule 18 of these Rules”. It is now well settled that the clauses beginning with words “notwithstanding anything contained in the Act, Rule or Schedule” is with a view to give enacting part of the Section in case of conflict an overriding effect over the Act, Rule or Schedule mentioned in a non obstante clause. The provision engrossed with a non obstante clause would not be an impediment for the operation of the enactment. Reliance is placed on the decisions of Supreme Court in Orient Paper and Industries Ltd. v. State of Orissa (7), Narcotics Control Bureau v. Kishan Lal (8) and Union of India v. G.M Kokil (9). The non obstante clause in Sub Rule (2) whether governs and operates only over a part of the rule or the entire rule. Submission of Mr. Mehta that non obstante clause only controls initial grant whereby the annual dead rent could be determined as per the tender or bid offered irrespective of the minimum or maximum limit fixed under Schedule II, but at the time of renewal Schedule II shall operate and restrict the levy of dead rent on the basis of applicability of non obstante clause to a part of Sub Rule (2) of Rule 21 which says “Notwithstanding anything contained in the Schedule II in such case the annual dead rent shall be determined by the tender or the bid offered as the case may be” and that this view is fortified when Sub Rule (2) says that “Other terms & conditions of the lease shall be in accordance with rule 18 of these rules” which lays down as one of the conditions that the lessee shall also pay for every year such dead rent within the limit specified in Schedule II.

12. On consideration of the entire Rule 21, we do not find that the operation of non obstante clause has a restricted operation to the first part of Sub Rule (2) of Rule 21 when the lease is given by auction or by inviting tenders i.e at the initial grant only. The mining lease by auction or by tender and by an application, are separately dealt with. Procedure for grant of mining lease on an application and giving of mining lease by auction or by tender, are different. There is a specific provision made in Rule 21 for grant of mining lease by auction or by tender. Non obstante clause in Sub Rule (2) completely excludes operation of Schedule II of these Rules at the time of initial grant or at the stage of renewal. Words “…and such dead rent shall be subject to revision as per provisions of these rules” are used for the purpose of applicability of Rule 16 which provides for duration of the lease; revision of the dead rent after five years. Rule 17 which lays down the procedure for renewal of mining leases; reduction of area of the lease at the time of renewal; entertaining late filing of the applications for renewal on payment of penalties, safeguarding the right of lessee; if application for renewal is not disposed of in time; and other rules concerning renewal. In simple words the determination of dead rent at the time of renewal of the mining lease shall be subject to other relevant rules considering renewal of mining leases but excluding Schedule II of the Rules of 1977. Phrase “Other terms & conditions of the lease shall be in accordance with Rule 18 of these rules”, means all terms & conditions except the condition of payment of dead rent within the limit specified in Schedule II, mentioned in Sub Rule (3) of Rule 18, shall be incorporated or deemed to have been incorporated in the mining lease given by auction or by tender. There is no reason to restrict the operation of non obstante clause in Sub Rule (2) of Rule 21 for the initial grant of mining lease only. The effect of operation of non obstante clause is, Schedule II is completely excluded when the mining lease is given by public auction or by inviting tenders for determination of dead rent.

13. So far as the submission of learned counsel for petitioner that if Schedule II is not made applicable to the mining leases granted by tender or auction, it will give unbridled and uncontrolled powers to the authorities to fix the dead rent as they wish and decide. It may be mentioned that the State Government was aware of this and thus issued circular dated 9.8.1979 laying down the formulae for fixation of dead rent whereunder dead rent was to be fixed at the time of renewal on the basis of existing dead rent plus 40% of the existing dead rent plus average royalty of last four years. No doubt where a statute confers discretionary power upon executive authorities and the authority acts in an arbitrary manner, its action would be bad in law and liable to be struck down by the courts, but validity and constitutionality of such a power cannot be judged on an assumption that the executive or such authority would act in an arbitrary manner in exercise of its jurisdiction conferred upon it and particularly so when the State Government has laid down a formula under which dead rent is to be fixed then there is nothing left in the hands of the executive authorities to exercise its discretion contrary to that formula. There is a uniform basis provided by the State Government for arriving at the dead rent at the time of renewal and the uniform basis provided is always just, fair and reasonable as the authorities have a uniform and specified principle or procedure in their hand for assessment of the dead rent. When the field is open, the State Government has a power to issue executive orders, which are not in contravention of the statutory rule, to supplement or to fill up the lacunae in the statutory provision. Rule 21 excludes the provision of Schedule II, wherein the maximum and minimum dead rent is prescribed and, therefore, it was open for the State Government to lay down the standard or fix the formulae for arriving at the dead rent and the executive authorities are bound by those formulae. There is a uniformity in the fixation of dead rent at the time of renewal in the case of mining leases which have been given by auction or by tender. The circular laying down the formulae of fixation of dead rent at the time of renewal of the mining lease is just, fair and proper and cannot be said to be arbitrary as it has connection with the production.

14. For the aforesaid reasons the notices issued for recovery of the increased dead rent from the petitioner for renewal of the mining leases granted under Rule 21 are in conformity with Rule 21 and as such challenge to those notices fails. Petitions dismissed.