STATE OF RAJASTHAN Vs. JETHA NAND DEVAN DAS

JUDGEMENT

(1.) THESE 29 special appeals, under S. 18 of the Rajasthan High Court Ordinance, by the State of Raj are directed against the judgment of the learned Single Judge dated November 25, 1969. They arise out of 29 writ petitions Nos. 677 of 1969, 203 of 1969, 268 of 1969, 430 of 1969, 731 of 1969, 951 of 1969, 155 of 1969, 410 of 1969, 494 of 1969, 736 of 1969, 476 of 1969, 1364 of 1969, 118 of 1968, 970 of 1969, 1162 of 1969, 1014 of 1968, 678 of 1969, 123 of 1967, 1168 of 1969, 943 of 1969, 89 of 1968, 1056 of 1969, 148 of 1969, 975 of 1969, 525 of 1969, 966 of 1969, 322 of 1969, 969 of 1969 and 284 of 1969, which were disposed off by the learned Single Judge by a common judgment of November 25, 1969. The learned Single Judge allowed the writ petitions Nos. 118 of 1967, 155 of 1669, 203 of 1969, 410 of 1969, 430 of 1969, 322 of 1969, 268 of 1969, 476 of 1969, 494 of 1969, 525 of 1969, 678 of 1969, 731 of 1969, 736 of 1969, 969 of 1969, 970 of 1969, 975 of 1969, 1056 of 1969, 1162 of 1969, 1168 of 1969 and 1014 of 1969. These writ petitions related to cases where the petitioners had excavated or won the minerals without obtaining any lease, royalty -cum -lease or short term permit in an unauthorized manner. The learned Single Judge allowed these petitions, inter alia, on the ground that the royalty cannot be charged from the persons who were trespassers or unauthorized excavators of the minerals under the provisions of the Minor Mineral Concession Rules. The special appeals Nos. 224 of 1970, 218 of 1970, (sic)13 of 1970, 219 of 1970, 215 of 1970, 238 of 1970, 214 of 1970, 222 of 1970, 230 of 1970, 236 of 1970, 228 of 1970, 216 of 1970, 221 of 1970, 249 of 1970, 225 of 1970, 235 of 1970, 233 of 1970, 226 of 1970, 230 of 1970 and 227 of 1970 respectively, relate to these 20 writ petitions. Writ petitions Nos. 123 of 1969, 89 of 1968, 285 of 1969, 943 of 1969, 148 of 1969, 637 of 1969, 951 of 1969, 964 of 1969 and 1364 of 1969, related to those contractors, who had obtained short term permits for particular category of minerals for the specified quantity, but had won the minerals other than those specified in the short term permits. The learned Single Judge therefore, allowed these writ petitions also on the ground that the minerals which were not mentioned in the permit and were used by petitioners, were not chargeable to royalty as the winning of such minerals would amount to unauthorized excavation of the minerals. The State has, therefore, filed these 29 special appeals challenging the judgment of the learned Single Judge in respect of the above writs alleging that despite the unauthorised winning of the minerals, the royalty would be chargeable on such minerals from the respondents. 2. IN order to appreciate the controversy involved in these appeals, it will be proper to give some material facts which are relevant for the disposal of these appeals. The respondents, in these cases, were the contractors, who had undertaken the construction of the defence roads and in the course of construction of the roads, they excavated and used certain mining minerals without getting lease or royalty cum lease or short term permits. As a matter of fact, they excavated or won the minerals other than those specified in the short term permits. They did not pay any royalty to the Mining Department for the use of such minerals. The Mining Department issued notices of demand for the recovery of the royalty for the minerals unauthorizedly excavated and used by the respondents. The respondents did not comply with the notices by making payment of the amount mentioned in the notices. On the other hand, they challenged the demand notices under Art 226 of the Constitution of India on various grounds. In these petitions, the stand of the respondents was that the minerals which they used unauthorizedly were not at all chargeable to royalty, as the royalty is payable to the Government in respect of are or minerals excavated from any Government land which is leased out under the Rules. According to the respondents, they were neither the lessees nor short term permit holders and therefore the royalty could not be recovered for the unauthorized excavation of the minerals by them, as there was no provision of law empowering the State Government to recover the royalty in respect of the minerals unauthorizedly excavated or won by the respondents.

(2.) THE State Government opposed the writ petitions and tried to justify the demands. In its return, the State alleged that the respondents had entered into contracts with the State of Rajasthan (the Public Works Department) Clause 30(a) of that agreement provided that the respondents -contractors will make payment of the quarry fees, octroi, royalty etc. The State, there fore, on the bans of clause 30(a) of the agreement, contended that the royalty could be recovered even for the unauthorized excavated minerals used by the contractors by virtue of the said clause of the agreement entered into between them and the State. It was further pleaded by the State that, at any rate, under section 256 of the Rajasthan Land Revenue Act, the State was entitled to make recovery in respect of the minor minerals unauthorizedly excavated and used by the respondents.

(3.) THE learned Single Judge allowed the writ petitions of the respondents who had excavated the minerals without obtaining any permit or lease on the ground that the royalty could not be recovered from them under any provisions of the Rajasthan Minor Mineral Concession Rules, and, at best, the respondents could be prosecuted for unauthorized excavation and user of the minerals under rule 47 of the Rules. He, therefore wholly allowed such writ petitions of each of the respondents who had unauthorizedly excavated and used the minerals without obtaining any lease or permit from the State Government. As regards the cases of the respondents, who had obtained the permits of a particular category of minerals but had excavated or used the minerals other than those specified in the permits, the learned Single Judge partly allowed the writ petitions holding that so far as the minerals which were specified in the permits are concerned, the respondents were under an obligation to pay the royalty. But the royalty in respect of the minerals, which were excavated and used, and which were not specified in the permit, could not be realised as, such an excavation tantamounts to unauthorized one. It is in these circumstances, that these 29 special appeals have come to be filed by the State. 4. THE learned Government Advocate has assailed the judgment of the learned Single Judge on various grounds. Firstly, the recoveries against the respondents could be made by virtue of clause 30(a) of the agreement entered into between the State and the contractors, as under that clause, the contractors had taken the responsibility of paving the royalty; recoveries against the contractors, therefore could be made on the basis of the agreement under clause (b) of section 256 of the Land Revenue Act; secondly, the recoveries could be made against the contractors (respondents in these appeals) either under clause (c)(ii) or (d) of section 256 of the Act for unauthorisedly extracting minerals from the mines; thirdly, the respondents being unauthorised excavators of the minerals, ate disentitled to get any relief under Article 226 of the Constitution by their conduct as they are trespassers and unlawful excavators of the minerals; fourthly by virtue of amendment in the Mine's and Minerals (Regulation and Developments) Act, 1972, recoveries could be made against the respondents in regard to the Unauthorised excavation of the minerals under the newly inserted sub -section (5), of section 21; fifthly, the respondents had alternative remedy by way of suit under sub section (3) of section 257B of the Act as they could file suits under this subsection; and lastly, recoveries could be made from the respondents under rules 55 and 64 and 65 of the Rajasthan Minor Mineral Concession Rules (hereinafter to be referred to as "the RMMC Rules").