Hari Singh vs State of Rajasthan and Others

A.K. Mathur, J.—This writ petition and the writ petitions mentioned in Schedule A appended to this order have been placed before this Division Bench on reference being made by Hon''ble Mr. Rajesh Balia, J while disagreeing with the view taken by Hon''ble Mr. V.K. Singhal, J. in Sadanand and Ors. v. State of Rajasthan and ors. (S.B. Civil Writ Petition No. 31/1991, decided on 25.5.1992). The following two questions have been framed by the learned Single Judge which read as under:

Whether the power to relax a rule conferred on the Government under rule 65 of the Rules of 1986 also takes within it the power to substitute ah existing rule with a new rule?

Whether the State Government has authority under rule 65 of the Rules of 1968 to direct for charging of dead,rent in a given case at rate different than the prescribed under the Rules, without amending the Rules itself?

In order to understand the controversy raised in these writ petitions, the facts given in the case of Hari Singh v. State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 155/1990) are taken into consideration.

The petitioner by this writ petition has challenged the order of the State Government dated 24.5.1989 (Annex.7), whereby the State Government has issued an executive order directing that at the time of renewal of the mining lease for construction of brick kiln in Sri Ganganagar and Bikaner, the lead rent shall be charged not in accordance with the II Schedule but on the basis of the capacity of production of the brick kiln. This order is purported to have been issued by the Government in. exercise of the powers conferred on it under Rule 65 of the Rajasthan Minor Minerals Concession Rules, 1986 (referred to herein after as ''the Rules of 1986''). The petitioner was having 5.19 bighas of land in Square No. 83/12 in Chak 14 M.D. Tehsil Gharsana District Sri Ganganagar. He applied for conversion of this land for establishment of a brick kiln and after necessary enquiry the Collector, Sri Ganganagar vide his order dated 25.3.1989 covered the land for establishment of brick kiln. After this conversion the petitioner applied on 27.3.1989 before the respondent No. 3 for the purpose of grant of mining lease. On 24.4.1989, the mining lease was granted to the petitioner. A copy of the same has been placed on record as Annex. 2. At the relevant time the dead rent amount was 4,516/-, which is evident from Item No. 7 of Annex.2 i.e. mining lease. After this, the petitioner by the letter dated 25.4.1989 Was asked to deposit a sum of Rs. 1,129/- as advance installment of dead rent. The petitioner deposited the required amount of Rs. 1,329/- on 8.5.1989. The petitioner was granted on Short Term Permit after depositing the amount of Rs. 2,588/- for 1.25 bricks. He deposited the amount of Rs. 2,588/-. Then, again he was given a Short. Term Permit on 23.5.1989, 14.6.1989 and 24.6.1989. Thereafter, the petitioner was asked to appear in the office of the respondent No. 2 on 26.6.1989 for execution of the agreement. It is submitted that all the required formalities of submitting National Saving Certificates and stamps worth Rs. 830/- for the purpose of agreement were completed before 20.6.1989. The petitioner appeared in the office on 26.6.1989 in pursuance of the aforesaid letter. But the respondent No. 2 refused to execute the agreement and also refused to issue short term permit. The petitioner approached the Superintending Mining Engineer, Jodhpur. The petitioner asked to deposit Rs. 5,157/- for getting short term permit for 5 lacs bricks, which the petitioner deposited on 29.9.1989 and the petitioner was granted one short term permit for 1.25 bricks on 29.9.1989 and another short term permit on 17.10.1989 and then on 1.11.1989. The petitioner again deposited a sum of Rs. 5,175/- but he was refused further short term permit and the agreement was also not executed. The petitioner was told by the respondent No. 2 that the dead rent cannot be accepted in pursuance of the order of the State Government dated 24.5.1989 and same will be charged on the basis of the production capacity, a copy whereof has been placed on the record an Annex. 7. This order of the State Government dated 24.5.1989 (Annex.7) has been challenged by this writ petition.

The learned Single Judge in the case of Sadanand and Ors. (supra) took the view that the Government has a power under Rule 65 to relax the condition for payment of dead rent under the II Schedule on the basis of capacity of the kiln in respect of the districts Sri Ganganagar and Bikaner. Learned Single Judge in the case of Sadanand (supra) took the view that the letter of the Director, Mines and Geological Department Government of Rajasthan submitted to the Government of Rajasthan Should be taken as a basis for this relaxation. However, the learned Single Judge found that on the envil of Article 14 of the Constitution of India there is no reason to discriminate Sri Ganganagar and Bikanar districts. Therefore, the learned Judge observel as under in the case of Sadanand (supra):

If the position of the adjoining district or other district is also same as prevailing in Shri ganganagar and Bikaner then relaxing power in respect of Shri Ganganagar and Bikaner districts would be an arbitrary exercise, which would be violative of Article 14 of the Constitution of India. It is possible that those conditions which were prevailing in the districts of Shri ganganagar and Bikaner might not be prevailing in other districts but the record must show that this factor was taken into consideration that is why a specific order was required to be passed for relaxing the condition under rule 65. In the present exclusion of other districts from the purview of the power of relaxation under rule 65 and as such so long as similar treatment is not given to the leases of other districts, the petitioners cannot be discriminated. The order passed by the respondents making the provisions of Rule 65 applicable to the districts of Shri ganganagar and Bikaner shall remain in operative till such power has been exercised or considered in respect of the other districts.

This case was cited before Hon''ble Balia, J. and Balia, J. expressed his reservation and he observed that the State Government cannot relax the Schedule appended to the Rules by an executive order and the power of relaxation does not amount to substituting a new provision in the Rules. Therefore, the learned Judge recorded his disagreement with the view taken by Hon''ble Singhal, J. and referred he matter to the Division Bench by framing two questions referred to above.

In order to appreciate the controversy involved in the present case it will be relevant to refer certain provisions of the Act and the Rules framed having bearing on the subject. The operations of mines and minerals are governed by the Mines and Minerals (Regulation and Development) Act, 1957 framed by the Central Government (referred to hereinafter as ''the Act of 1957'') Section 9 lays down the royalties governing the mining leases.

Section 9 reads as under:

Royalties in respect of mining leases. (1)The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or his agent, manager, employee, contractor or sub-lessee from the leased area after such commencement, at the rate for the time being specified in Second Schedule in respect of that mineral.

(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or his agent, manager, employee contractor or sub-lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.

(2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, shall not be liable to pay any royally in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one third of a tonne per month.

(3) The Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification:

Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral mere than once during any period of four years.

Section 13 lays down the power of the Central Government to make rules in respect of minerals. Section 15 lays down the power of the State Government to make rules in. respect of minor minerals. The exacavation of land and digging out the sand for construction of the bricks is a minor mineral. Therefore, the State Government has a power to frame the rules for this mineral. Section 15 reads as under:

Power of State Government to make rule in respect of minor minerals.

(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of miner minerals and for purposes connected therewith.

(2) Until rules are made under Sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.

(3)The holder of mining lease or any other mineral concession granted under any rule made under Sub-section (1) shall pay royalty in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals.

Provided that the State Government shall no enhance the rate of royalty in respect of any minor mineral for more than once during any period of four years.

In the purported exercise of the powers conferred by sub-section (1) of Section 15, the State Government has framed the Rajasthan Minor Mineral Concession Rules, 1986. Under the Rules of 1986 the mining leases are granted. We are not concerned with the procedure in the present case. However, the conditions are contained in Rule 18 of the Rules of 1986. One of the important condition which will have a bearing on the subject in condition No. l, which reads as under:

(1) The following conditions shall be included in every minding lease and if they are not so included shall be deemed to have been included therein:

(a) The holder of a mining lease granted before the commencement of these rules, shall notwithstanding anything contained in the instrument of lease or any law or rules in force at such commencement, pay royalty in respect of any mineral removed by his from and/or consumed within the leased are after such commencement at Schedule I in respect of that mineral,

(b) The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from and/or consumed within the leased area at the rate for the time being specified in Schedule in respect of that mineral.

(c) The State Government may, by notification in the Official Gazette, amend the Schedule I so as to enhance the rate at which royalty shall be payable in respect of any mineral in accordance with the provisions of these rules with effect from such date as may be specified:

Provided that no enhancement in the rate of royalty shall be made before a period of 4 years from such previous enhancement.

Condition 3 relates to payment of Head rent, which reads as under:

(3) The lessee shall also pay for every year such yearly deadrent as may be fixed by the Government in quarterly installments in advance, and if the lease permits the working of more than one mineral, the State Government shall not charge separate deadrent in respect of each mineral;

Provided that the yearly Deadrent at the time of initial grant shall be according to the rates specified in Schedule II. The rates specified in Schedule II shall, however, not be applicable at the time of revision of dead rent;

Provided further that the competent authority may revise deadrent after every 5 years from the date of initial grant or of renewal of the mining lease in accordance with the following formula:

Revised Deadrent = Existing deadrent 40% of Existing

deadrent+Average excess royalty of the first four years of each sped of 5 years:

Provided further also that the lessee shall be liable to pay either dead rent or royalty in respect of each mineral whichever is higher but not both.

According to this condition, the dead rent has to be charged according to the rates specified in the Second Schedule and it can be revised after every 5 years from the date of initial grant or renewal of the mining lease in accordance with the formula mentioned above.

Rule 65 lays down that the Government has a power to relax the Rules. Rule 65 reads as under:

Relaxation of Rules-The Government may relax any provision of these rules for reasons to be recorded in writing.

How, in these sets of the provisions, we have to examine as to whether the Government Order (Annex.7) dated 24.5.1989 relaxing the conition of dead rent and substituting the basis of charging rent on production capacity is valid or not.

Hon''ble Singhal, J. has took the view that the Government by letter Annex. 7 could exercise the power conferred by Rule 65 and can relax the dead rent and substitute the basis for charging rent on the basis of the production of brick kiln. Hon''ble Singhal, J. has observed that though no reasons have been mentioned by the Government in the order but the reasons can be read from the letter written by the Director for changing the basis. In this connection, the decision given in the case of Atma Ram Bilochi and Others Vs. State of Rajasthan, was distinguished by the learned Judge.

Hon''ble Balia, J. has taken the view that the State Government cannot by an executive letter substitute the rule as the Schedule has been fixed under the Rules and the Rules alone can be amended in a manner provided in the Rules itself and by no other way. the tariff provided in the Second Schedule appended to the rules cannot be changed by issuing an executive order. Hon''ble Balia," J. has also referred to the decisions given in the cases of Atma Ram Bilochi and Others Vs. State of Rajasthan, and a subsequent decision of this Court in Bal Mukand Arora and etc. etc. v. State of Rajasthan and Ors. AIR 1981 Raj. 95. Therefore, he has differed from the view taken by the Hon''ble Singhal, J.

We have heard learned Counsel and perused the record.

The first question relates to whether in exercise of the powers under Rule 65 can a new rule be substituted. Our answer to this question is in negative. The relaxation of the Rules only means that the effect of a particular rule contained in the Rules of 1986 is relaxed in a particular situation for reasons to be recorded. The berm ''relax has been defined in Shorter Oxford English Dictionary as under:

Relax- to slacken, abate, diminish (art effect etc.) and; to cause to abate in zeal or force.

The word ''relaxation'' has been defined in the of one said dictionary as under:

Relaxation- Partial (or complete) remission of some penalty,burdon,duty etc.

In its grammatical variations, the Random House Distionary defines the word "relax" to mean:

Relax- to diminish (a force), or to make to slacken or abate, to make less strict, severe (as rules, discigline).

Likewise, the word "relaxation", which is formed from the word "relax", has been defined to mean:

Relaxation-(1) abatement or relief from effort, obligation,

(2) diminishment or permission of strictness or severity.

The word ''relax'' has been defined in Webster''s Third New Internation Dictionary as under:

"Relax" to loosen, slacken, more at slack, to make less close in structure, texture or formation: lessen the density or compactness of: to make less tense or rigid: lessen the tension or pressure; to make less severe or strict: lossen the stringency, austerity or harshness of; to make soft or enervated: deprive of energy, zeal, strength of purpose; to relieve from nervous tension, cause to unbend in manner or bahavious; to relieve from constipation; to become lax, weak or loose, to abate in intensity; to become lax, weak or loose, o abate in intensity; to become inactive and lengthen, to shrink to original length after release of stress; to cast off social restraint; pervous tension or attitude of anxiety or suspicion to seek rest or recreation; escape from pressure or duty or responsibility.

The word ''relaxation'' has been defined in the aforesaid dictionary as under:

"Relaxation" the act or fact of relaxing or of being relaxed; as abatement or remission of a penalty or payment; a relaxing or recreative state, activity or pastime; release from or cancellation of legal restriction or penalty: release from a penalty, the lengthening that characterizes inactive muscle fibers or muscles, the adjustment of a system to a state of equilibrium following the abrupt removal of some influence.

The relaxation only means that the rigour of a particular rule is slackened in its application to a given case. By no stretch of imagination the relaxation can mean that a new rule can be substituted. If the State Government feels that the deadrent as mentioned in decond Schedule has to be amended then the same should be amended in the manner provided in the Rules. If there is no provision for amendment in the Rules then for amending the rules the same method should be followed as required for framing the rules, and the authority who is framing the rules has a power to amend or rescind or vary or add. Section 23 of the Rajasthan General Clauses Act, 1955 clearly lays down that where a power to make or issue orders, rules, regulations, schemes, forms, bye-laws or notification is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, very or rescind any orders, rules, regulations, schemes, forms, bye- laws or notifications so made or issued. Therefore, if the Government intended to do away with the deadrent as provided in the Schedule then the only proper course left for the Government was to have amended the Schedule and provided the necessary charges. But by issuing simply executive order/letter the Schedule cannot be amended. This is just not permitted as the Executive Authorities have no power to amend the rules as the rules have been framed by the Government in exercise of power u/s 15 of the Act and the State Government alone can amend the Scheduled by following the same procedure in the same manner in which the rules were framed. There is a direct authority of this Court namely, Atma Ram Bilochi (supra) in which the similar question was examined and the learned Single Judge held that State Government in exercise of executive power cannot amend the Schedule appended to the Rules. In that case, the question also arose was that whether the State Government can increase the dead rent by executive order than the existing dead rent prescribed in the Schedule while renewing the lease-deed. In that context, it was observed as under:

It is clear from Rule 18 (3) of Rules that the executive authority of the Government granting the mining lease in respect of minor minerals is free to fix the rate of yearly dead rent within the limits specified in Second Schedule. In other words, he may fix the race in his discretion, but in doing so he cannot fix it lower than the minimum rate and higher than the maximum rate specified in Second Schedule. The letter dated 5.11.1979 of the Deputy Secretary, Government of Rajasthan in Mines (Group IV) Department of Superintending Engineer, Mines and Geology Department carries no more weight in the eye of law than the executive fiat of a superior authority addressed to its subordinate. Without amending the rates in the Second Schedule by following the procedure prescribed for making rules, the State Government cannot act on the basis of its own fiat expressed through on the basis of its own fiat expressed through one of the departmental Secretaries. The increase of dead rent while sanctioning renewal limits as prescribed in Second Schedule. If the increase ordered exceed is the maximum limit in Second Schedule, It is illegal and invalid.

Similarly, the same question again arose before this Court in the case of Bat Mukand Arora (supra) and in that case a request was made to before his case to a larger bench as the ratio laid down in the case of Atma Ram Bilochi does not lay down the correct law. The learned Single Judge after examining that judgment expressed his full agreement with the view taken in the aforesaid case and it was observed as under:

The resultant position is that I am not inclined to make a reference for a larger Bench for reconsideration of the judgment in Atamram Bilochi''s case, consequently the two points decided in that case regarding the validity of the ''dead rent'' and power of the State Government to levy and collect the ''dead rent'' and secondly, the increase in the yearly dead rent, stands correctly decided. It is held that the Government of Rajasthan is authorised by law to levy and collect the ''dead rent'' and the definition as given under Rule 3 (ix) of the Rules, is not ultra vires. It is further held for the reasons mentioned in the judgment of Atmaram Bilochi''s case, the increase in the yearly dead rent, while sanctioning renewal of the leases in question if it exceeds the maximum limit as prescribed in the second Schedule and enhances the minimum limits as prescribed under the Second Schedule, is illegal and invalid.

Therefore, both these authorities clearly lay down that the State Government by the executive fiat cannot charge the dead out more or less as prescribed in the Schedule, meaning thereby the State Government cannot by the executive order change the Second Schedule fixing the dead rent.

In this connection, our attention was also invited to the decision given in the case of Kartar Singh and Another Vs. State of Rajasthan and Others, In that case also a question arose under the Irrigation and Drainage Rules, 1955. There also the tariff was prescribed under Schedule I and by a communication issued by the Commissioner, Irrigation Department, the water charges were increased and in that also this Court took the view that this cannot be done. It was observed as under:

The brick making and pise wall building is a spefic item mentioned in the schedule and for which rate has been prescribed as 4 Annas 6 Pie per 100 cft. but no amendment was brought about in this item. Therefore, this letter Ex. 2 does not empower the Executive Engineers for insisting on payment of Rs. 101- per 1000 cft. for brick making.

Thus, in this back ground, it is clear that though the Government has a power to relax certain provisions of the Rules but under the purported exercise of power of relaxation under Rule 65 it cannot substitute a new rule by an executive letter. The first question is answered that the State Government in purported exercise of power under Rule 65 of the Rules of 1986 Le. power of relaxation, cannot substitute an existing rule with a new rule.

The second question is also answered that the Government without amending the Schedule cannot charge more than the dead rent prescribed in the Schedule without amending the Schedule in accordance with law.

Before parting with the cases, we may also mention here that the royalty can only be charged on the basis of any mineral removed or consumed. Therefore, the basis of charging is the actual removal or consumption of the mineral. The capacity cannot be made a basis for charging the royalty. The letter Annex.7 issued by the State Government has changed the basis, which is not permissible under the law. Under the Act of 1957 the basis is removal and consumption. Likewise, in the Condition No. 18 (1) (a) and (b) the charges is on the basis of removal and consumption of the mineral. Therefore, the State Government should not loose sight of the fact that the basis for charging the royalty is removal or consumption of the mineral and not the production capacity. Therefore, the State Government should keep this fact also in view. It will not be out of place to mention here that Government should exercise the power under Rule 65 only in a manner provided under the Rules i.e. the provisions of the Rules can only be relaxed for the reasons to be recorded. It is the State Government which has been conferred with the power to relax the rule for the reasons to be recorded. The reason recorded should reflect the application of mind. The basic and fundamental requirement of law is that the act should be done in a manner required by the Statute and not in any other way. Rule 65 requires that the Government has a power to relax the provisions of a particular rule for which reasons has to be recorded. The reasons should is not mentioned in the order then reasons recorded on the note-sheet can be read either by producing the original note-sheet or. reasons on the affidavit in writing. But nothing of this sort has been done in the present case.

In the result, instead of remanding these writ petitions back to the learned Single Judge we deem it just and proper to allow all those writ petitions and quash the order Annex. 7 dated 24.5.1989. It will be open for the State Government to proceed afresh in accordance with the law.