Letters Patent Appeal No.793 OF 2002 ---- Appeal against the judgment and order dated 17.7.2002 passed by a learned Single Judge of this Court in C.W.J.C.No.1254 of 2002. ---- Ramesh Prasad Verma son of Late Amresh Prasad Verma, R/O village D.K.Shikarpur, Bettiah, Distt- West Champaran.(Appellant in LPA No.793/2002) Versus THE STATE OF BIHAR & ORS--------- (Respondents) With LPA No.893 of 2002 --- Appeal against the judgment and order dated 17.7.2002 passed by a learned Single Judge of this Court in C.W.J.C.No.2072 of 2002. ---- Rai Brij Mohan Sharma son of Late Rai Gopal Sharma, of village Bilaspur,P.S.Ramnagar,Distt- West Champaran at Bettiah(Appellant in LPA No.893/2002) Versus THE STATE OF BIHAR & ORS----------- (Respondents) For the appellant in LPA No.793/2002 : M/s. Madhuresh Prasad Satyavrat Verma Rajesh Verma For the appellant in LPA No.893/2002 : Dr. Amrendra Kumar For the State in Both appeals : Mr. V.M.K.Sinha Special Public Prosecutor, Mines. P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN S.K.Katriar Jyoti Saran,JJ. These two appeals arise out of a common judgment and order dated 17.2.2002 passed by a learned Single Judge of this Court, in 2 C.W.J.C.Nos.1254 of 2002 and C.W.J.C.No.2072 of 2002, whereby the writ petitions have been dismissed and the order passed by the learned appellate authority has been upheld. Common issues of facts and law are involved in these appeals and are, therefore, being disposed of by a common judgment. 2. We take up L.P.A.No.793 of 2002, first and the facts shall be drawn from C.W.J.C.No.1254 of 2002 giving rise to the present appeal, except by specific reference to any other proceeding. A brief statement of facts essential for disposal of the appeal may be indicated. The petitioner had taken a lease for a period of ten years for the period 1992 and December 2002 under the Bihar Minor Mineral Concession Rules, 1972 (hereinafter referred to as „BMMC Rules‟). The period of lease had expired in December 2002 and has not been renewed. The lease was to win pebbles (Gutika) from the Basin of Pandai River. The rate of royalty as stated in the notification dated 17.8.1991, was applicable at the time of commencement of the lease. It was revised by notification dated 29.8.1994, whereunder the lessee (appellant) was required to pay in terms of notification dated 29.8.1994 (Annexure-1). Though it had taken the lease for pebbles (Gutika), the rate 3 of royalty of which was at the rate of Rs.20/- per cubic meter, the State Government started realizing at the rate of Rs.25/- per cubic meter against serial no.(1) of the schedule of the notification, which applied to different items. It is relevant to state the Hindi expression of „Sandstone‟, namely, „Balu Pathar‟, which was used in S.No.16 of the notification dated 29.8.1994. We not pursue it further because the appellant never challenged it at any stage, and acquiesced in the situation. 3. This was followed by Government notification, dated 24.3.2001 (Annexure-2), whereby the lifting of boulder, gravels, shingles, etc was revived to Rs.100/- per cubic meter. Serial No.2 and 9 of the notification reads as follows. “2.Boulder,Gravel,Shingles which is used for making chips--------------- Rs.100.00, 9.Quartzite and sandstone when used for purpose of building or for making road metal and household utensils. ------- Rs. 40.00.” The following note at the foot of the notification gives rise to the controversy in the present case. “Note: In respect of minerals mentioned in Sl.no.1 and 2 the identified areas of the two categories of the said minerals, shall be notified separately, as per rules, and 3. This order will come into force from Ist April, 2001.” 4 4. This was followed by demand notice dated 6.9.2001 as per the revised rates raising demand of Rs.28,80,079/-, for the period 1.4.2001, to July, 2001. The appellant deposited a sum of Rs.11 lacs against the demand. This was followed by demand notice dated 29.11.2001, covering the period 1.7.2001 to October 2001, raising a demand of Rs.16,75,353/-, against which the appellant deposited a sum of Rs.8.5 lacs. The appellant was served with a third demand notice for the remainder of the year. Copies of the demand notices have not been produced before us. 5. In view of the aforesaid notification dated 24.3.2001 (Annexure-2), the State Government under order dated 5.5.2001, constituted an expert Committee to notify the areas where the aforesaid notification dated 24.3.2001 (Annexure-2) should be applied. The Committee submitted its report dated 8.7.2001 (Annexure-6), covering the area of Pandai river basin and may be notified. The State Government accepted the report and issued notification dated 26.12.2001 (Annexure-4), notifying that Pandai river basin along with other areas to be covered by the aforesaid notification dated 24.3.2001 (annexure-2). 5 6. The appellant challenged the demand notices by preferring appeal before the appellate authority, which was rejected by order dated 16.1.2002 (Annexure-8). Aggrieved by the same, the appellant filed writ petition which has been dismissed by order dated 17.2.2002. The learned Single Judge has held as follows in the judgment: xxx xxx xxx “31.- In these circumstances once the areas were identified by the notification dated 26.12.2001 the demand would relate back from the date the charge of royalty was fixed at the higher rate i.e.1.4.2001. I, therefore, see no infirmity in the impugned demands being raised w.e.f. 1.4.2001.” xxx xxx xxx 7. Learned counsel for the appellant raises a grievance that the learned Single Judge has erred in law by holding that the recommendations of the expert Committee would relate back to 24.3.2001, the date of the notification (Annexure-2). The learned counsel for the appellant relied upon a judgment of the Supreme Court in the case of K.Manikchand and others Vs. Elias Saleh Mohammed Sait and others, reported in AIR 1969 SC 751. In his submission, the Government notification dated 26.12.2001 (Annexure- 4) can only be prospectively applied. 8. Learned counsel for the respondents has supported the impugned action of the Government. 6 9. We have heard the learned counsel for the parties, and considered the materials available on record. The appellant does not challenge the validity of the notification dated 24.3.2001 (Annexure-2), and submits that its retrospective application is ultravires. In other words, the appellants are willing to pay Rs.100/- per cubic meter w.e.f. 26.12.2001 (Annexure-4), even though the rate of Rs.40/- per cubic meter as per serial no.9 is really applicable. 10. The appellant as stated, does not challenge before us the validity of the notifications dated 24.3.2001 (Annexure-2), and dated 26.12.2001 (Annexure-4), seeking to realize royalty at the rate of Rs.100/- per cubic meter with respect to river basin. The only question in controversy before us is whether or not the respondent authorities are entitled to realize the royalty at the rate of Rs.100/- w.e.f. 24.3.2001, or w.e.f. 26.12.2001. As indicated hereinabove, the learned Single Judge has held that in view of the clear stipulation in the notification dated 24.3.2001 (Annexure-2), the notification dated 26.12.2001 (annexure-4) relates back to 24.3.2001. 11. The issue is not free from difficulties. We, 7 however, take the view that we have taken for the reasons assigned hereinbelow. The admitted position is that the lease deed in question is for lifting pebbles from the Pandai river basin as per the notification dated 24.3.2001 (Annexure-2), and the appellant does not challenge the validity of the same including the rates stated therein except the date of the applicability of the notification in the present case. The question, therefore, is as to the interpretation of the note appearing at the end of the notification dated 24.3.2001. It appears to us that the State Government intended to realize the royalty at the higher rate with respect to the notified areas w.e.f. 1.4.2001. It was, therefore, incumbent on the authorities to notify the areas upto 1.4.2001, so that the lessees were in a position to pass on the liability to the next. It is a possible situation that the Committee may have recommended that Pandai river basin may not be covered by notification, and the lessees may not have been required to pay royalty at the higher rate and there would not have been necessity to pass on the liability. Therefore, there would have been no occasion to realize the royalty at the higher rates until the State Government notified Pandai river 8 basin on 26.12.2001. We are, therefore, of the view that realization of the royalty at a higher rate is not permissible from a date prior to 26.12.2001 (Annexure-4). 12. Learned counsel for the appellant has relied on a judgment of the Supreme Court in the case of K.Manikchand and others V. Elias Saleh Mohamed Sait and others (supra). That was a case under the Usurious Loans Act 1918, read with section 76 of the Transfer of Property Act, 1882. The mortgage deed of 1933 in respect of a property in area comprising Civil and Military Station, Bangalore had arisen. The Supreme Court held that the date of commencement of Act of 1918 was important, and not the date of coming into operation of Act. Date of commencement of Act must be held to be date on which it came into force in Bangalore Civil and Military Station. The date on which it came into force in Bangalore Civil and Military Stations in 1933 was applicable to the suit, and not the date on which the Act of 1918 was enacted. Applying the ratio of the judgment in the facts and circumstances of the case, it appears to us that there would grave injustice to the lessees if they are required to pay at the higher rate of royalty for the period 24.3.2001 and 25.12.2001. We, 9 however, hasten to add that the lessee has no objection in payment of the royalty at the higher rate w.e.f. 26.12.2001. 13. In that view of the matter, we respectfully disagree with the observations of the learned Single Judge set out hereinabove, and accordingly set aside the order of the learned appellate authority. The appellant shall be entitled to pay royalty as per the aforesaid notification dated 29.8.1994 (Annexure-1) till 25.12.2001, and shall be liable to pay at the higher rate w.e.f. 26.12.2001. L.P.A.No.793 of 2002 is accordingly allowed. 14. We now take up L.P.A.No.893 of 2002. The appellant is also a lessee of the adjoining area on the same terms and conditions. The points for consideration in this appeal are identical to the aforesaid appeal. In that view of the matter, the order of the learned appellate authority is hereby set aside in so far as the present appeal is concerned. The order of the learned Single Judge in C.W.J.C.No.2072 of 2002, is accordingly modified. 15. In the result, L.P.A.No.793 of 2002, and L.P.A.No.893 of 2002, are hereby allowed. The order dated 16.1.2002 (Annexure-8), passed by the learned appellate authority is hereby set aside to the 10 extent indicated hereinabove in so far as the two appeals are concerned. The judgment of the learned Single Judge is accordingly modified. The appellants of both the appeals shall be required to pay the royalty at the higher rate as indicated in the notification dated 24.3.2001 (Annexure-2) w.e.f. 26.12.2001 Annexure-4). The appellants shall be entitled for adjustment of the amounts already deposited by them, and shall pay the balance amount if found due against them. In the facts and circumstances of the case, there shall be no order as to costs. Patna High Court, Dated, the 21st August,2009, AFR/ahk (S.K.Katriar,J.) (Jyoti Saran,J.)