IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12146 of 2003 Nagendra Kumar son of Shri Rajendra Singh, resident of Mohalla Chandauti Mor, P.S. Chandauti, District- Gaya. -- Petitioner. Versus 1. The State of Bihar. 2. The Special Secretary, Mines & Minerals Department, Government of Bihar, Patna. 3. The District Magistrate, Gaya. 4. The District Mines Officer, Gaya.----- Respondents. ----------- 7/ 21-01-2011 Heard Mr. Rajendra Prasad Singh, learned Senior counsel appearing on behalf of the petitioner and Mr. V.M. K. Sinha, learned Special P.P. appearing on behalf of the respondents. 2. The petitioner is aggrieved by the notice, contained in letter no. 1317/Gaya dated 28.07.2003 (Annexure-1) and letter No. 1333/Gaya dated 28.07.2003 (Annexure-2), both issued under the signature of Assistant Mining Officer, Gaya purportedly in consonance with the Government decision communicated vide office letter dated 14.12.2002 (Annexure-2/A) issued by the Special Secretary, Department of Mines and Minerals, Government of Bihar. 3. Learned counsel for the petitioner submits that both the demand notices are contrary to the statutory provisions contained in The Bihar Minor Mineral Concession Rules, 1972 and are also contrary to the terms of lease deed executed by respondents and, therefore, same are fit to be set aside by this Court. 2 4. Learned counsel appearing on behalf of the respondents has filed a brief counter affidavit on behalf of respondent no.4 today in the court annexing gazette notification dated 27th March, 2008 (Annexure-R/1), whereby in exercise of powers conferred by section 15 of the Mines and Minerals (Development and Regulation) Act 1957 (hereinafter referred to as “the Act” only), Rules 1972 has been amended by Bihar Minor Minerals Concession (Amendment) Rules 2008. By Clause-5 of the aforesaid amending Rules a proviso has been added to sub-rule (4) of Rule 52 of 1972 Rules, which is reproduced herein below:- “ 5. Addition of a proviso to sub rule (4) of rule 52 in the Bihar minor mineral concession Rules, 1972- The following proviso shall be added to sub rule (4), of rule 52, namely:- “provided that notwithstanding anything repugnant in these rules or otherwise the settlee shall pay extra royalty for the quantity of stone extracted and dispatched in excess of the quantity equivalent to bid amount. It shall come into force with effect from 29th November 2004.” 5. In view of the amendment of the Rules contemplating therein that w.e.f. 29th November, 2004 settlee shall pay extra royalty for the quantity of stone extracted and dispatched in excess of the quantity equivalent to bid amount, the impugned demand notices, 3 as contained in Annexure 1 and 2 with respect to the period prior to 29th November, 2004 cannot be sustained in the eye of law, even under the amended provisions of the Rules referred to above. Consequently the present petition is allowed. Impugned demand notices, as contained in Annexure-1 and 2 are quashed. It goes without saying that respondents shall be entitled to charge extra royalty under the provisions of amended rules w.e.f. 29th November, 2004, unless and until that amended rule is either amended further or set aside by any court of competent jurisdiction. BTiwary/ ( Birendra Prasad Verma, J.)