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2019 Supreme(Pat) 1770
IN THE HIGH COURT OF JUDICATURE AT PATNA
Amreshwar Pratap Sahi, Anjana Mishra, JJ.
Mr. Aman Sethi S/o Late Shri Som - Appellant
Versus
The State of Bihar - Respondent
Letters Patent Appeal No.379 of 2019
In
Civil Writ Jurisdiction Case No.12859 of 2017
with
Civil Writ Jurisdiction Case No. 7034 of 2016
Decided On : 25-07-2019
For the Petitioners:Mr. K.N. Singh, Sr. Advocate
For the Mines Department :Mr. Naresh Dixit, Advocate
For the State : Mr. Gyan Prakash Ojha, G.A. 7, Mr. Uday Shankar Pandey, A.C. to G.A. 7, Mr. Niraj Kumar Sinha, A.C. to PAAG-2
Headnote:
Mines and Minerals (Development and Regulation) Act, 1957 – Section 9 – Bihar Minor Mineral Concession Rules, 1972 – Rule 25 (2) – Operation of mining lease and exemption from royalty – Royalty is payable as fixed under lease and which is made commensurate to removal and consumption of mineral allowed to be mined – Lease holder has to carry out this operation – Date of commencement of lease cannot be altered unless there is an express agreement to that effect and subject to such terms and conditions that may be in conformity with rules – Petitioner can only claim a right of exemption or concession in event he ultimately succeeds in writ petition and not before that. (Paras 20 to 22)
Mines and Minerals (Development and Regulation) Act, 1957 – Section 9 – Bihar Minor Mineral Concession Rules, 1972 – Rule 25 (2) – Operation of mining lease and exemption from royalty – Registration of mining lease is compulsory – – Petitioner was under compulsion to have got lease-deed registered within a period of three months – Petitioner has not made any attempt to commence mining operations on his own after execution of lease in absence of any express provision prohibiting the same – Petitioner being fully aware of terms and conditions of lease as well as Act and Rules chose to contest the same in view of pendency of a reference before Apex Court which petitioner hoped would ultimately be answered in his favour – This hope and expectation of petitioner of succeeding in litigation in future cannot absolve him of contemporaneous liability of either getting lease registered immediately after its execution which would be dependent on payment of Stamp Duty – Any delay on that count is at the cost of a voluntary risk of petitioner who has chosen to challenge validity of imposition of Stamp duty – Hope of a future success might result in refund of Stamp Duty that could be best possible outcome of litigation being pursued by petitioner – Terms of lease cannot be altered on the basis of this speculation – Question of extension of tenure or otherwise may be dependent on terms and conditions of contract which can be defined or altered to advantage of appellant by no one else than State Government – This cannot be by way of a judicial review – Royalty has to be paid which can be subject to any adjustment by State Government – Appeal consigned to records. (Paras 23 to 27)
Cases Referred:
Dalmia Cement (Bharat) Ltd. vs State of Tamil Nadu, (2014) 2 SCC 279; Uberoi Mohinder Singh and Associates vs. State of Haryana, (1991) 2 SCC 362 – Referred.
JUDGMENT :
Amreshwar Pratap Sahi, J.
This appeal has been filed questioning the correctness of the judgment of the learned Single Judge contending that the appellant should be allowed to operate his mining lease for a full period of five years from the date he was actually permitted to commence mining operations and he should not be compelled to pay royalty other than the mineral “removed and consumed” by the petitioner under the lease. This contention is being advanced by the appellant grounded on the fact that for no fault of the appellant, he was, on account of the obstruction created due to excessive demand of Stamp Duty, prevented from operating the mining lease as it could not have been done without getting the lease-deed registered. This in turn was based on the apprehension that since the law requires registration of the lease, its violation could have resulted in its cancellation.
2. Thus, a two pronged relief was claimed by instituting the writ petition that has given rise to this controversy where a mandamus had been prayed for coupled with a writ of certiorari to quash the letter dated 09.12.2016 whereby a demand of Rs. 2,20,00,000/- was made in respect of the second installment of royalty which according to the respondent- Department was falling due, and was payable prior to 31st January, 2017.
3. The lease was advertised through a public notice dated 12.12.2014 against which the appellant applied and succeeded in getting a Letter of Intent on 10th of February, 2015 for a lease awarded under the orders of the Collector, Nawada dated 15.01.2015 for mining of stone over an area of 14 acres in Village Badhokra over Plot No. 4256 that was earmarked as Area No. 11, for a period of five years from the date of the execution of the lease which was to be compulsorily registered or else the lease would be cancelled. This Condition No. 4 of the lease is extracted hereinunder:-
^4- vof/k%& iV~Vk fu"iknu ls 5 ¼ikWap½ o"kksZa ds fy, fof/kekU; gksxh rFkk fu"ikfnr nLrkost dk fuca/ku djkuk gksxk vU;Fkk iV~Vk jn~n dj fn;k tk;sxkA^^
4. Registration of the lease was made compulsory under Clause 6 (N) immediately after its execution and was to be tendered before the authority.
5. The State Government approved the mining plan submitted by the petitioner whereafter the formalities of environmental clearance etc. were carried out and the lease-deed came to be executed on 15th of February, 2016. The agreement of the lease is Annexure-5 to the writ petition. This lease-deed was only on a stamp of Rs. 1000/-. On 19th February, 2016 the petitioner was informed that Stamp Paper worth Rs. 66,00,000/- had to be tendered as duty. This information was given by the Sub Registrar office at Nawada where the lease-deed had been presented for its registration.
6. The petitioner’s contention is that this demand of excessive Stamp Duty came to be challenged by him in C.W.J.C. No. 7034 of 2016, the records whereof were also summoned by us for its perusal. The writ petition was filed in April, 2016 and was taken up on 13th July, 2016 whereafter it was adjourned on the request made by the learned counsel for the State on several occasions.
7. On 11th August, 2016 a learned Single Judge of this Court passed an interim order in the said writ petition that the Mining Department will not take any coercive measure for cancellation of the lease.
8. On 16th September, 2016 the learned Single Judge recorded that despite indulgence having been granted on several occasions the State has not answered the query raised by the Court and directed the matter to be listed immediately thereafter with a prima facie opinion expressed that the petitioner was ready to furnish a Bank Guarantee equivalent to the amount of Stamp Duty that was being demanded that would be subject to final decision of the writ petition.
9. The matter was ultimately heard and on 19th November, 2016 a detail order was passed by the learned Single Judge referring to the matter being pending before a Nine Judges
