* THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE N.RAVISHANKAR + W.P.Nos.1639 of 2002 & 1054 of 2003 % Date of Order: 17-06-2010 Between: # The Govt. of A.P. rep. by the Secretary, Industries &Commerce Department, Secretariat, Hyderabad and others. ..Petitioner and $ M/s.B.Nemichand Dugar &Sons, Gudur, Rep. by its partner N.Suresh Dugar ..Respondents ! Counsel for the petitioners : G.P. for Industries ^ Counsel for the respondents : Sri P.Chandra Mouli < GIST > HEAD NOTE ? Cases Referred: [1] AIR 1990 SC 85 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE N. RAVI SHANKAR WRIT APPEAL Nos.1639/2002 and 1054/2003 Date of Order: 17-06-2011 WA No.1639/2002: Between: 1. The Government of Andhra Pradesh, represented by the Secretary, Industries & Commerce Department, Secretariat, Hyderabad and others. ..Appellants And M/s. B. Nemichand Dugar & Sons, Gudur, Nellore District, represented by its Partner N. Suresh Dugar. ..Respondent The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE N. RAVI SHANKAR WRIT APPEAL Nos.1639/2002 and 1054/2003 COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) These two writ appeals raise a common issue with regard to liability to pay royalty and dead rent in the revised rates. Hence, they are being heard together and disposed of by this common judgment. 2. WP No.17605/1990 is filed for issuance of a writ of Mandamus declaring the letter No.1985/M2/76 dt. 14-9-1990 of the Assistant Director of Mines and Geology, Nellore and letter No.4724/M3/89 dt. 3-1-1991 and letter No.1985/M4/76 dt. 2-1-1991 issued by the Deputy Director of Mines and Geology, Guntur, and Assistant Director of Mines and Geology, Nellore respectively as illegal and void and for a consequential direction to the Assistant Director of Mines and Geology, Hyderabad, to refund Rs.15,447/- to the petitioner or adjust it during the year 1990-91 and subsequent years. 3. WP No.17815/1989 is filed for issuance of a writ of Certiorari calling for the records pertaining to letter No.1985/M2/76 dt. 27-11- 1989 issued by the Assistant Director of Mines and Geology, Nellore, and to quash the same as illegal, arbitrary, unconstitutional and without jurisdiction holding that the petitioner is liable to pay the dead rent and royalty at the rate of Rs.37-50 per hectare per annum only as specified in the mining lease agreement vide proceedings RC No.C12/737/76 dt. 22-6-1976 issued by the District Revenue Officer. 4. A learned single Judge by order dt.6-12-2000 disposed of WP No.17605/1990 with the following directions: Firstly, it is declared that the petitioner has surrendered Ac. 1447.71 of land as per third proviso to Rule 29 of the Mineral Concession Rules, 1960 to the Government through his letter dated 29-12-1988 and he is in possession of an extent of Ac.200.00 of land as per the lease deed. Secondly, it is declared that the petitioner is liable to pay an amount of Rs.150/- per hectare per annum towards revised dead rent instead of Rs.37.50 per hectare per annum, as revised by the Central Government under Section 9(3) of the Mines and Mineral Regulation and Development Act, 1957, which came into force from 5-5-1987. As the petitioner has agreed to pay revised rates of dead rent under clause 2 Part V of the lease deed dated 22-6-1976 for the last period i.e., 11th to 20th year. Thirdly, it is declared that the State Government has no power to collect Mineral Rights Tax from 25-4-1989, on which date the Supreme Court, in INDIA CEMENT LIMITED V. STATE OF TAMIL NADU (AIR 1990 SC 85) has held that the State Legislature has no competence under Entry 23 of List II of Schedule 7 of the Constitution of India to make legislation empowering the State Government to collect Mineral Rights Tax. In view of the above declarations, both the parties are directed to settle their disputes with regard to the payment and refund of excess amounts paid by the petitioner, if any, and in such an event the same may be adjusted for the next lease year.” In view of disposal of WP No.17605/1990, WP No.17815/1989 was partly allowed by the impugned order dt. 18-1-2001 holding that the writ petitioner is liable to pay the revised dead rent from 5-5-1987 and further holding that the petitioner has surrendered an extent of Ac.1447-71 cents from 29-12-88 and is liable to pay the royalty on the dead rent from that date onwards. Questioning the same, WA No.1639/2002 and WA No.1054/2003 have been filed by the respondents in WP No.17605/1990 and WP No.17815/1989 respectively contending that as per Rule 29 (1) of the Mineral Concession Rules, 1960 (for short “the Concessions Rules”), the writ petitioner has to determine the mining lease after giving notice in writing of not less than twelve calendar months time to the State Government or the Authority as the State Government may specify in that behalf; that rule 29(2) of the Concession Rules, the writ petitioner has to make an application atleast six months before the intended date of surrender of the leased area and he must clear off all the dues as on the date of application and he must also deposit an amount of Rs.200/- for meeting the expenditure for the purpose of survey and demarcating, but the petitioner made an application on 29-12-1988 without making deposit of Rs.200/- and failed to attend the re-survey and therefore, the finding of the learned single Judge that the surrender of the leased area shall come into effect from the date of application is contrary to the provisions of the Concession Rules. It is also contended that the learned single Judge failed to see that the writ petitioner made another application for surrender of leased area on 6- 7-1990 enclosing the revised sketch showing the area surrendered and retained; that as out of the arrears of mineral revenue to a tune of Rs.1,90,096-05, the petitioner has paid only Rs.30,000/- and therefore the question of considering the request to accept the surrender proceedings does not arise unless he clears all the dues; that in view of the Cess and other Taxes on Minerals (Validation) Act, 1992 (for short “the Validation Act”), the Cess and Mineral Rights Tax (MRT) collected upto 4-4-1991 are validated, the finding of the learned single Judge that the State Government has no power to collect MRT from 25-10-1989 is contrary to the Validation Act, 1992. 5. The facts, which are not in dispute, are briefly stated as under: The writ petitioner was granted mining lease over an extent of Ac.1647-71 cents in an unsurveyed area in Pulicat lake situated at Venadu village, presently Tada Mandal, Nellore District, for a period of 20 years vide G.O.Ms.No.1157 Industries and Commerce Department dt. 31-12-1975, to promote industrial growth in the Nellore District, for starting up an industry for manufacture of lime shell powder and allied products within two years from the date of lease. Accordingly, lease agreement was executed in between the Government of Andhra Pradesh and the writ petitioner on 22-6-1976. According to the terms of the lease deed, the dead rent payable is as follows: First year Nil Second year to Fifth year Rs.12-50 ps per hectare Sixth year to Tenth year Rs.25/- per hectare. Eleventh year to Twentieth year Rs.37-50 ps per hectare. The writ petitioner has not started the factory within two years from the date of execution of the lease deed. While so, the Government of India amended Second Schedule and Third Schedule to the Mines and Minerals (Research and Development) Act, 1957 by enhancing the rates of dead rent. As per the revised rates, the petitioner-lessee is liable to pay Rs.150/- per hectare per annum towards dead rent instead of Rs.37-50 per hectare per annum. On such enhancement, on making a demand of dead rent at an enhanced rate of Rs.150/- per hectare per annum, the writ petitioner made a representation, which was rejected by an order dt. 27-11-1989 by the Assistant Director of Mines and Geology, Government of Andhra Pradesh, Nellore, calling upon the petitioner to pay Rs.1,60,096-05 being the arrears due and payable upto the period ending 31-3-1989. Questioning the said demand, the petitioner filed WP No.17815/1989. While so, the petitioner submitted a letter dt. 29-12-1988 proposing to surrender Ac.1447-71 as it was found to be uneconomical and retaining only Ac.200-00 cents for mining operations, by enclosing a rough sketch showing the area to be retained. According to the petitioner, he paid Rs.200/-by way of challan bearing No.320 dt. 5-4- 1989 for survey and demarcation. On making application by the petitioner, the surveyor of the Office of the Assistant Director of Mines and Geology, Nellore, has taken up survey and demarcated the area proposed to be surrendered and submitted proposals to the Director, Mines and Geology, Hyderabad through the Deputy Director of Mines and Geology, Guntur, vide letter No.1985/MI/76 dt. 13-5-1989. On the said proposals, the Deputy Director, Mines and Geology, Guntur, through a memo No.987/M3/82 dt. 16-6-1989 called upon the Assistant Director of Mines and Geology, Nellore to state whether the retained area, which was demarcated in the sketch is in accordance with the rule 35 of the Concession Rules or not. Rule 35 is to the following effect: “The length of an area held under a mining lease shall not exceed four times its breadth”. The Surveyor of the Office of the Assistant Director of Mines and Geology, Nellore, had verified the sketch and noticed that the extent is not satisfying rule 35 of the Concession Rules. Therefore, the petitioner-lessee has been requested to attend the re-survey, but he failed to attend the re-survey proposed by the Assistant Director of Mines and Geology, Nellore, on part surrender of the area, but he made another application on 6-7- 1990 enclosing the revised sketch showing the area surrendered and retained. On making such application, the Surveyor of the fourth respondent’s office visited the area on 10-7-1990 for conducting re- survey. The partner of the lessee company attended the survey and showed the boundaries of the retained extent. Accordingly the Surveyor prepared a sketch for the area retained out of Ac.1647.71 acres originally under lease agreement duly satisfying Rule 35 of the Concession Rules, for which the petitioner gave his consent. Thereafter, the proposals were submitted to the Deputy Director of Mines and Geology, Guntur, on part surrender application of the petitioner dt. 6-7-1990 enabling him to submit proposals to the Director of Mines and Geology, Hyderabad. On such proposals, the Deputy Director, Mines and Geology, Guntur, called for clarification on the dues position upto the date of part surrender application and directed to inspect the surrendered area as to whether it is economical to work the area or not. On such direction, the Assistant Director, Mines and Geology, Nellore, has inspected the area and reported that the area surrendered is barren and uneconomical and regarding dues position as on the date of filing of application for part surrender, the lessee company was in arrears of Rs.1,69,394-25 and further the lessee was in arrears of Rs.1,90,096-05 towards Mineral Revenue Amount. On petitioner paying Rs.30,000/-, for the balance due of Rs.1,60,096-05, a demand notice was issued on 27-11-1989 Questioning the same, the petitioner filed WP No.17815/1989. As per the interim direction, the petitioner paid half of the amount under demand and furnished bank guarantee for the other half of the amount demanded. The Assistant Director, Mines and Geology, Nellore, determined the mineral revenue from 1-4-1989 to 31-3-1990 on the total extent of the leased area at Rs.1,27,107-00 and issued a notice dt. 14-9-1990 demanding the said amount. Questioning the same, WP No.17605/1990 is filed contending that the Assistant Director of Mines and Geology, Nellore, has no jurisdiction to levy and demand mineral rights tax as well as cess as per the judgment of the Supreme Court in THE INDIA CEMENT LIMITEDD V. STATE OF TAMILNADU[1]. Therefore, demand of Rs.1500/- towards balance of MRT and Rs.33,923/- towards balance of cess is unsustainable. The Assistant Director of Mines and Geology, Nellore, erred in calculating the dead rent on the entire extent of Rs.1646.71 acres without excluding the surrendered area of Ac.1447-71 on 29-12-1988 and the petitioner has been doing mining operations only in 200 acres. When the petitioner paid royalty at the rate of Rs.10/- per ton of lime shell in advance as per Clause I of Part V of the lease deed, the dead rent payable at the rate of Rs.37-50 ps per hectare for 200 acres (99.90 hectares) is Rs.3409/- which is less than the royalty. Therefore, the respondents have to refund Rs.17,127/- to the petitioner or the surface rent arrears payable by the petitioner may be adjusted from the amount of Rs.17,125/-. Non issuing transport permits on the ground that the amount demanded in the impugned notice is not paid is arbitrary and illegal. 6. A detailed counter affidavit has been filed by the Joint Director of Mines and Geology, Hyderabad on behalf of the respondents while admitting about amount of lease and entering into an agreement etc., stated that the Central Government is empowered to amend the Second Schedule, which deals with the rate of royalty in respect of Major Minerals so as to enhance or reduce the rates at which the royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification. Accordingly, the Central Government issued a notification under Section 9(3) and Section 9-A(2) of Mines and Minerals (Development & Regulation) Act, 1957 fixing the rate of royalty for MT of lime shell is Rs.10/- and rate of dead rent is as under: “The Third Schedule (See Section 9A) (Dead Rent) 1. The rates of dead rent applicable to the leases other than those obtained for supply of raw material to the industry owned by the concerned lessee: (Rates of Dead Rent in rupees per hectare per annum) Sl.No. Category of ML 1st year of the lease 2nd to 5th year of the lease 6th to 10th year of lease 11th year of the lease and onwards 1 Lease area upto 50 hectares Nil 30 60 90 2 Lease area about 50 hectares b u t not exceeding 100 hectares Nil 40 80 120 3 Lease area above 100 hectares Nil 60 100 150 In the case of lease obtained for the supply of raw material for the industry owned by the concerned lessees, the rates of dead rent would be applicable as given in respect of item No.1 above, irrespective of the leased area. But the lessee has failed to comply with the conditions of the lease deed. During the year 1987- 88 the petitioner has taken dispatch permits for 2380 mts of lime shell. The usual royalty paid way bills for the permitted quantity from Sl.No.3101 to 3250 reveal that the permitted quantity has not been subjected to any processing at their factory at Tada. In the royalty paid way bills from Sl.No.310-1 to 3250, the petitioner has stated against clause V of Form X way bill as from mines to Tada Sales Depot and as such it is evident that the petitioner has not utilised the lime shell in their factory at Tada. Hence, the petitioner has to pay the dead rent at Rs.150/- per hectare per annum. Further the tenure and the lease is from 22-6-1976 to 21-6-1996. From 2-6- 1976 to 4-5-1987 the rate of dead rent was as under: 22-6-1976 to 21-6-1977 1st year Dead rent is exempted 22-6-1977 to 21-6-1981 Rs.12-50 Per hectare per annum 22-6-1981 to 21-6-1986 Rs.25-50 Per hectare per annum 22-6-1986 to 4-5-1987 Rs.37-50 Per hectare per annum 5-5-1987 onwards (revised rate) Rs.150/- Per hectare per annum The revised rates of royalty and dead rent which came into force w.e.f., 5-5-1987 were communicated to the petitioner through office circular No.3999/MI/87 dt. 7-8-1987. The extent of the lease is 1647.71 acres which falls in the 3rd category of the Third Schedule. The Assistant Director of Mines and Geology, Nellore, has finalized the mineral revenue assessment for 1987-88 charging dead rent from 1-4- 1987 to 4-5-1987 @ Rs.37-50 per hectare per annum (pre revised rate) and from 5-5-1987 to 31-1-1988 @ Rs.150/- per hectare per annum (revised rate) as the lessee company selling material, lime shell, to different carbide factories without processing the same, which is evident on verification of surrendered way bills, which fact has been informed to the lessee company through letter dt. 30-8-1988. Thereafter, the petitioner filed a representation dt. 10-10-1988 requesting the respondents to charge dead rent at Rs.90/- per hectare per annum stating that they are washing lime shell with water and chemicals and converting into various sizes in their factory at Thada. The Joint Director of Mines and Geology, Hyderabad, while forwarding the representation dt. 10-10-88 requested the Director to give suitable directions regarding the rate of dead rent to be charged and the Director through memo dt. 3-11-1989 requested the Joint Director to rent the representation and collect the amount immediately as demanded. Accordingly, the petitioner was informed through letter dt. 27-11-1989 demanding him to pay Rs.1,60,096-05 upto 31-3-1989. Challenging the same, they filed WP No.17815/1989 and obtained interim direction for issuance of transport permits on condition of the petitioner depositing one half of the demanded amount and furnishing bank guarantee for the other half. The petitioner through his letter dt. 29-12-1988 applied for part surrender of leased area over an extent of 1447.71 acres out of Ac.1647-71 acres retaining 200 acres only. If the lessee wants to surrender the land, he has to give notice in writing of not less than twelve calendar months as per Rule 29 of the Concession Rules. Further, the lessee has not fulfilled the obligation under the Rule 29 of the Concession Rules, which prescribes payment of requisite fee of Rs.200/- while filing part surrender application. The said challan has not been received in the office along with the application. The petitioner has not submitted proper surveyed sketch and enclosed a rough sketch to the surrender application. As per the sketch furnished by the petitioner, survey has been undertaken and demarcated the area proposed to be surrendered and submitted proposals to the Director, Mines and Geology, Hyderabad through the Deputy Director. The Deputy Director through memo dt. 16-6-1989 requested the Assistant Director of Mines and Geology, Nellore, to state whether the retained area demarcated in the sketch is in accordance with Rule 35 of the Concession Rules or not. The Surveyor of the Office of the Assistant Director of Mines and Geology, Nellore, had verified the sketch and noticed that the extent is not satisfying Rule 35 of the Concession Rules. Thereafter, the petitioner was called upon to attend the re-survey proposed by the office of the Assistant Director of Mines and Geology, Nellore, on part surrendered area, but the petitioner filed another application on 6-7-1990 enclosing the revised sketch showing the area surrendered and retained extents. On the basis of the revised application, survey was undertaken and prepared the sketch for the area retained out of total area satisfying rule 35 of Rules, 1960, for which the petitioner gave his consent, and later proposals were submitted to the Deputy Director on part surrender application of the petitioner dt. 6-7-1990 for appropriate orders through the second respondent. At the time of filing of application, the petitioner has not fulfilled the statutory requirement as envisaged under Rule 29(2) of the Concession Rules. Therefore, a demand notice dt. 14-9- 1990 has been issued for payment of arrears accrued upto 31-3-1990 as follows: Dead Rent Rs.90036-00 S.R. Rs.1648-00 Cess Rs.33923-00 MRT Rs.1,500-00 Total Rs.1,27,107-00 As the representation of the petitioner has not been accepted for part surrender, the question of retaining only an extent of 200 acres does not arise. 7. Learned Government Pleader for Industries contended that mere making an application for part surrender of the leased area in contravention of Rule 35 of the Concession Rules is not a valid surrender and surrender/part surrender of leased area has to be in accordance with rule 35 of the Concession Rules. He further contended that the significance of survey is only to see whether surrender is as per the rules or not on such survey and when the petitioner has not complied with the statutory condition, namely, dues payable till such date it is not a valid surrender. When the same is pointed out to the petitioner, the petitioner filed another application on 6-7-1990 enclosing a revised sketch showing the area surrendered and retained extents in compliance with the statutory provisions, and therefore, the said date has to be taken into consideration provided if he pays all the dues payable till that date and the learned single Judge has erred in coming to the conclusion that surrender comes into effect from 29-12-1988. 8. Per contra, Sri M.P.Chandra Mouli, learned Counsel for the respondent-writ petitioner while sustaining the judgment/order under appeals contended that it is not necessary to have a survey first for surrender of the leased extent and once amount by way of challan is paid and enclosed a sketch showing the area to be surrendered, surrender will come into force w.e.f. 29-12-1988 ie., the date application as per Sec. 29 of the Concession Rules. Merely because conducting survey and finalization of the surrender on 10-7-1990 the petitioner cannot be made liable for payment of dead rent and passing of orders by the Government are not necessary as the effective date of surrender is the date on which application is made. 9. The question that arises for consideration is whether part surrender to an extent of Ac.1447-71 by the petitioner through his letter dt. 29-12-1988 is in accordance with the statutory rules to claim that the surrender comes into effect on the date of application so made. 10. In order to resolve the controversy in this case, the relevant statutory provisions may be stated: Rule 29 of the Concession Rules reads as under: 29:Restrictions on determination of lease: (1) The lessee shall not determine the lease except after notice in writing of not less than twelve calendar months to State Government or to such officer, or authority as the State Government may specify in this behalf: Provided that where a lessee holding a mining lease for a group of minerals applies for the surrender of any mineral from the lease on the ground that deposits of that mineral have since exhausted or depleted to such an extent that it is no longer economical to work the mineral, the State Government may permit the lessee to surrender that mineral, subject to the following conditions, namely:- (a) the lessee applies for such surrender of mineral at least 6 months before the intended date of surrender; and (b) the lessee gives an undertaking that he will not cause any hindrance in the working of the mineral so surrendered by any other person who is subsequently granted a mining lease in respect of that mineral: Provided further that where a lessee applies for the surrender of the whole or a part of lease-hold area on the ground that such area is barren or the deposits of minerals have since exhausted or depleted to such an extent that it is no longer economical to work in such area, the State Government shall permit the lessee, from the date of receipt of the application, to surrender that area if the following conditions are satisfied, namely:- (a) the leasehold area to be surrendered has been properly surveyed and is contiguous, (b) the lessee has paid all the dues payable to the Government under the lease up to the date of application, and © the lessee has obtained a certificte under Rule 29A. Provided also that surrender of the lease area by the lessee shall be permitted only thrice during the period of the lease on fulfilling the conditions- (i) that a least a period of five years has elapsed since the last surrender; and (ii) that the provisions of the mining plan including the environment management plan thereof have been complied with.