The main legal point established in the judgment is that a lessee, in whose favor settlement was made under Rule 9A of the Concession Rules, is not liable to pay additional royalty as per the impugned government letter.

Mridula Mishra, J.

1. Petitioner is the lessee in whose favour four different plots were awarded by way of lease by the department of Mines for extraction of stone for a period of five years. The Department of Mines had advertised for auction, an open bid was held on 7.10.2002. Petitioner participated in this bid and declared successful bidder as such lease was awarded in his favour. Two lease deeds were executed in his favour on 24.1.2003 and other two lease deeds on 24.3.2003. The petitioner was discharging his liabilities in capacity of lessee as per the lease deed but the State Government vide its Memo No. 283/M dated 14.2.2002 issued a direction that all such lease which have been auctioned taking Rs. 11,50,000/-as the minimum reserve deposit for 2.00 acres of land proportionately are liable to pay royalty for the excess stone extracted/mined out beyond their auction amount and they are required to pay royalty amount in addition to their auction amount. The State Government vide Memo No. 2418/M Patna dated 29.11.2004 issued clear direction for realisation of additional royalty from those bidders in whose favour settlement of stone plots have been made in open bid taking Rs. 11.50 lakhs as the minimum reserve jama. By this letter direction was issued to Collector that cases in which minimum reserve deposit was fixed without prior reference to the Departmental Technical Committee regarding available quantity of minerals on site, royalty should be collected and charged for the excess stone mined out beyond their auction amount. Such bidders were held liable to pay amount of royalty for mining, that amount of royalty which exceeds the amount of auction value. However, it was directed that bidders in whose case auction took place on the basis of minimum reserve deposit fixed after assessment of the quantity of the minerals by departmental technical committee, royalty will be limited to amount obtained in auction, provided the lease holder has executed the agreement. In compliance of letter No. 2418/M Patna dated 29.11.2004 the District Mines Officer, Rohtas at Sasaram issued demand notices (Annexure-3 series) to the petitioner for payment of royalty on the basis of extracted mineral in excess of auction money. The demand notices as well as the Government letter No. 2418 dated 29.11.2004 were challenged by the petitioner by filing Revision case No. 35 of 2005 before the Mines Commissioner, which was allowed in part, but so far realisation of royalty is concerned finding was recorded that as per Sec. 26(4) of Bihar Minor Mineral Concession Rule is concerned the department is justified in demanding additional royalty from the petitioner on the basis of Government letter No. 2418 dated 29.11.2004. The Commissioner is directed to realise the dues and for charging the royalty from the lease holder in excess of the quantity of the auctioned amount. Direction was also to amend the circular(s) in the light of the order.

2. The petitioner has filed this application for following reliefs:

(i) for quashing of order dated 6.7.2006 passed by the Mines Commissioner in Revision Case No. 35 of 2005 directing payment of additional royalty in excess of bid amount.

(ii) For quashing the order contained Memo No. 2418/M dated 29.11.2004 issued by Deputy Secretary of the Government.

(iii) For quashing the proceeding of Certificate case No. 1 off 2005-06 initiated against the petitioner for realisation of additional amount of royalty.

3. Petitioner has challenged the impugned orders on the ground that these letters have been issued in violation of the Mines and Minerals (Regulation & Development) Act 1957 (hereinafter referred to as the Development Act) as well as Bihar Minor Minerals Concession Rule 1972 (hereinafter referred to as Concession Rules). It has also been stated that the impugned letter dated 29.11.2004 is without jurisdiction as by issuing this letter the Deputy Secretary, Mines has Exercised the rule making power of the governm