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Judgment
Satyeshwar Roy, J.—The Petitioner in this application has challenged the validity of the notification dated 5.5.1987 as contained in Annexure-2 issued by the Central Government u/s 9A(1) of the Mines and Minerals (Regulation & Development) Act, 1957 (the Act) enhancing the dead rent payable in respect of the mining lease granted under the Mineral Concession Rules, 1960 the Rules). Prayer has been made to quash Annexure-3, the demand for payment of dead rent at the enhanced rate and Annexure 6, notice to show cause why the lease of the Petitioner be rot determined for violating the conditions of lease dated 1.1.1963.
The Petitioner was having mining lease for an area of 1013.32 acres approximately 410.02 hectares for winning and mining mica. Before the expiry of that lease, the Petitioner filed an application for renewal of the lease. By Annexure-1, copy of the lease deed, a fresh lease was executed in favour of the Petitioner on 5.9.1986 for the aforesaid area for a period of twenty years with effect from 1.1.1983. The period of lease will expire with the expiry of 3 ht December, 2002. The Petitioner was paying royalty and dead rent as mentioned in Aiincxure-1.
The Central Government in exercise of power delegated to it under Sections 9 and 9A of the Act enhanced the rate of royalty and dead rent by amending second and third Schedules respectively to the Act by, issuing notification dated 5.5.1987. We are concerned in this case with Third Schedule which provides the rate at which dead rent is to be paid. As the dead rent was enhanced by notification dated 5.5.1987, a copy of which is Annexure-2 to the writ petition, a demand was raised by Respondent No. 4 on behalf of the State of Bihar as contained in Annexure-3 dated 26.2.1988 by which the Petitioner was informed that as the amount payable as dead rent was greater than the amount payable as royalty, the Petitioner was directed to pay Rs. 30, 347, 38 which includes interest and dead rent. The Petitioner took up the matter with Respondent No. 4 as is evidenced by Annexure 4 and 5. By Annexure-6 dated 18.8.1989 that Petitioner was informed that it had violated the terms and conditions of the lease deed dated 1963 inasmuch as it has not paid royalty and cess. The Petitioner was directed to show cause within thirty days why the lease deed be not rescinded and why other appropriate action be jot taken.
The Petitioner has challenged the validity of notification as contained in Annexure-2 on two grounds (a) the notification dated 5.5.1987 as contained in Annexure-5 was required to be published in the Gazette after the same wan ratified by both the Houses of Parliament. As that was not done, there has been non-compliance, of Section 28 of the Act, (b) the Parliament his delegated uncanalised and unguided power to the Central Government to enhance the rate of dead rent.
Regarding ground No. (a) relevant Sections are Sections 9A(2) and 28(1) of the Act. The relevant portion of Section 9A reads as follow:
9A. Dead rent to be paid by the lessee:
(1) ....
(2) The Central Government may by notification in the official Gazette, amend the Third Schedule so as to enhance or reduce the rate at which the dead rent shall be payable in respect of any area covered by a mining lease and such enhancement or reduction shall take effect from such date as may be specified, in the notification:
Provided tint the Central Government shall not enhance the rate of the dead rent in respect of any such area more than once during any period of three years.
The original rates of dead rent mentioned in the third Schedule to the Act were fixed by the Parliament. Section 9A(2) gives power to the Central Government to enhance or reduce the rent. A notification, copy of which is Annexure-2 to the writ petition, was issued by the Central Government on 5.5.1987 in exercise of power u/s 9A(2) of the Act with regard to Third Schedule. This was published in the Gazette of India. In the writ petition, it has been stated that the notification was not laid before both the Houses of Parliament as required u/s 28 of the Act. In the counter-affidavit, it has been stated that the notification dated 5.5.1987 was laid before the Lok Sabha on 13.6.1987 and before the Rajya Sabha on 12.5.1987 in terms of the provisions of Section 28 of the Act for a period of thirty days and as both the Houses of Parliament did not make any modification within the said period, the notification shall be deemed to have been approved by both the Houses of Parliament.
The factum of placing the notification dated 5.5.1987 in each of the House of Parliament, as stated in the counter affidavit, has not been challenged by the petitioner. It was, however, contended that after the expiry of the statutory period of thirty days it was necessary for the Central Government to publish it in the Gazette of India and as that was not done, the notification did not acquire the force of law and no demand for payment of dead rent at the enhanced rate could have been made. Section 28(1) with which we are concerned reads as follows:
Rules and notifications to be laid before Parliament and certain rules to be approved by Parliament:
(1) Every rule and every notification made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately, following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule of notification shall thereafter have effect only in such modified from or be of no effect, as the case be so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.
Section 23(1) provide that a notification made by the Central Government under the Act shall be laid before each House of Parliament while it is in session for a total period of thirty days and during that period if both the Houses agree in making any modification in the notification or both the Houses agree that the notification should not be made the notification shall thereafter have effect only in such modified form or be of no effect. What is required to be placid before both the Houses of Parliament is a notification. We have already noticed that the notification as contained in Aonaxure-2 was published in Gazette of India. Section 28 does not enjoin that such notification after the expiry of thirty days from the date it was laid before each House of Parliament shall have to be published again in Gazette of India. From the perusal of Section 28 of the Act it will appear that even if both the House of Parliament agree that the notification should not be made the validity of anything previously done under that notification will not be Affected. There is no merit in ground (a).
So far ground No. (b) is concerned, it was submitted by Mr. Dey that Section 9A(2) baa delegated� the power to the Central Government to enhance or reduce the rent at which dead rent shall be payable, but the Parliament did not lay down the guideline to be followed by the Central Government in either reducing or enhancing the rate of den rent. Arbitrary power has been given to Central Government.
It is true that in Section 9A(2), no guide-line has been stated. On behalf of the Respondent this position was not contested by Dr. Debi Prasad, appearing on behalf of respondent Nos. 1 and 2. He, however, urged that in view of the fact the notification issued u/s 9A(2) is to be laid before each House of Parliament for a local period of thirty days when both the Houses may agree either to modify to annul it, the ultimate say in the matter is of Parliament. From Section 28 it is clear that mere publication of a notification under the Act will not make it valid. It must be laid for thirty days before each House, of the Parliament. The purpose is that the Parliament may scrutinise it and if both the Houses agree may modify it or even annul it. The rates notified in Annexure-2 was not modified by the Parliament. It must be held that the Parliament approved the rate fixed by its delegate, the Central Government. There is no substance in around (b).
For the reasons aforesaid, we are of the opinion that the notification as contained in Annexare-2 cannot be struck down.
So far the challenge of the Petitioners of Annexarc-6 it was submitted by Mr. Dey that the Assistant Mining Officer has threatened to cancel the lease for alleaged dues outstanding against the lease deed dated 1.1.1963. He urged that lease has expired and the Petitioners arc in possession of the property as lessee on the basis of lease deed from 1.1.1983 for 20 years. If any amount with regard to lease deed of 1.1.1963 was outstanding, fresh lease dend would not have been executed. It was also submitted that for default in paying the dues for the lease deed dated 1.1.1963, the present lease deed cannot be terminated.
Clause 2 of Part IX of the lease deed, copy of which is Annexure-1, provides the penalty for default in payment of royalty etc. State Government may determine the lease on that account Annexure-1 cannot be determined for alleged non-payment of dues of lease dated 1.1.1963. Annexure-5 which refers to lease deed dated 1.1.1963 quashed. It is made clear that if the demand made therein relates to Annexure-1, the Respondents may proceed in accordance with law.
The writ petition is allowed in part Annexure-6 is quashed. All other reliefs prayed for are rejected.
Dharmpal Sinha, J.
I Agree.