PRADIP KUMAR JOSHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER is the lessee in whose favour four different plots were awarded by way of lease by the department of Mines for extraction of stone for a period of five years. The Department of Mines had advertised for auction, an open bid was held on 7.10.2002. Petitioner participated in this bid and declared successful bidder as such lease was awarded in his favour. Two lease deeds were executed in his favour on 24.1.2003 and other two lease deeds on 24.3.2003. The petitioner was discharging his liabilities in capacity of lessee as per the lease deed but the State Government vide its Memo No. 283/M dated 14.2.2002 issued a direction that all such lease which have been auctioned taking Rs. 11,50,000/ -as the minimum reserve deposit for 2.00 acres of land proportionately are liable to pay royalty for the excess stone extracted/mined out beyond their auction amount and they are required to pay royalty amount in addition to their auction amount. The State Government vide Memo No. 2418/M Patna dated 29.11.2004 issued clear direction for realisation of additional royalty from those bidders in whose favour settlement of stone plots have been made in open bid taking Rs. 11.50 lakhs as the minimum reserve jama. By this letter direction was issued to Collector that cases in which minimum reserve deposit was fixed without prior reference to the Departmental Technical Committee regarding available quantity of minerals on site, royalty should be collected and charged for the excess stone mined out beyond their auction amount. Such bidders were held liable to pay amount of royalty for mining, that amount of royalty which exceeds the amount of auction value. However, it was directed that bidders in whose case auction took place on the basis of minimum reserve deposit fixed after assessment of the quantity of the minerals by departmental technical committee, royalty will be limited to amount obtained in auction, provided the lease holder has executed the agreement. In compliance of letter No. 2418/M Patna dated 29.11.2004 the District Mines Officer, Rohtas at Sasaram issued demand notices (Annexure -3 series) to the petitioner for payment of royalty on the basis of extracted mineral in excess of auction money. The demand notices as well as the Government letter No. 2418 dated 29.11.2004 were challenged by the petitioner by filing Revision case No. 35 of 2005 before the Mines Commissioner, which was allowed in part, but so far realisation of royalty is concerned finding was recorded that as per Section 26(4) of Bihar Minor Mineral Concession Rule is concerned the department is justified in demanding additional royalty from the petitioner on the basis of Government letter No. 2418 dated 29.11.2004. The Commissioner is directed to realise the dues and for charging the royalty from the lease holder in excess of the quantity of the auctioned amount. Direction was also to amend the circular(s) in the light of the order.

(2.) THE petitioner has filed this application for following reliefs:

(3.) THE Bihar Minor Mineral Concession Rules 1972 (shortly to be termed as Concession Rules) came into force from 22.6.1972. It has been framed under Section 15 of the Mines and Minerals (Regulation & Development) Act, 1957 which gives power to the State Government to make rules in respect of Minor Minerals. "Minor minerals" have been defined under Section 3(e) of the Development Act, 1957. 3(e) "Minor Minerals" means building stones, gavel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government may by notification in the Official Gazette, declare to be a minor mineral. Chapter IA of Concession Rules deals with the application for grant and renewal of certificate of approval. Chapter III deals with the application for grant of mining leases which has to be submitted in prescribed form and there are different provisions for disposal of such application. Rule 9 is applicable for the purpose of granting mining lease. Under Rule 9 the applicant for a mining lease had to file application accompanied by required fee and relevant extracts of the Record of rights. Rule 9A was inserted in the year 2001 by notification in the official gazette dated 24.3.2001. After coming into force of Rule 9A any mineral may be termed out or settled by public auction / tender in the manner prescribed in Rule 52. Under Rule 52 provides procedure for the grant of quarrying lease by auction. Bids for settlement have to be held every year and the settlement is to be made for five years. Rule 25A provides that the lease granted under Rule 52, lease deed shall be executed in Form D as contained under Rule 21 of the Rules. Rule 26 deals with the assessment of rent, royalty and penal rent. Rule 26 reads as follows: