M.C. JAIN, Actg. CJ— By this writ petition the petitioner seeks to quash the order dated 10.11.89 Annex. 2 whereby revision in respect of dead rent was made for the periods commending from 17.3.80 to 16.3.90 and also the demand under Annex. 3 in respect of five years commencing from 17.3.85 to 16.12.89. The petitioner confines the writ petition to the challenge in respect of Annexures 2 and does not challenge the vires of sub-rule (3) of rule 18 of the Minor Mineral Concession Rules, 1977, second proviso to rule 18(3) of the Rajasthan Minor Mineral Concession Rules, 1986.

2. The petitioners case is that the petitioner was granted mining lease by the Mining Engineer, Jodhpur, This lease was renewed with effect from 17.3.80 for a period of ten years. At the time of renewal of the lease, Rajasthan Minor Mineral Concession Rule, 1987, were in force and thereafter with effect from 4.3.86, Rajasthan Minor Mineral Concession Rules, 1986 came into force, The petitioners case is that the dead rent could be revised after every five years from the date of grant of the lease or from the date of renewal of the Lease. According to the petitioner, the renewed lease shall be governed by the provisions of 1977 Rules, till the 1986 a Rules came into force. According to 1986 Rules, Rules of 1977 were repealed and actions taken under 1977 Rules were saved. The petitioners further case is that the power of revisions conferred by second proviso to sub- rule (3) of rule 18 can be exercised by the competent authority from the date of initial grant or of renewal of the mining lease in accordance with the formula given in the second proviso. But this power is only prospective in nature, The revised rate would be applicable from the date of revision and it can not be given retrospective effect. According to the petitioner, revision took placed on 10.11.89 in respect of the previous years commencing from 17.3.85 to 16.3.89. The revised dead rent cannot be charged from the petitioner. Revision could have taken place after five years but in the present case, in the span of five years commencing from 17.3.85, the revision was made as late as 10.11.89, so the revised rate was operative only prospectively and not retrospectively with effect from 17.3.85. Therefore, the demand created against the petitioner vide Annexure 3 in pursuance of Annexure 2 is illegal and to the extent that it has created demand in respect of the first four years commencing from 17.3.85 to 16.3.89, the demand is bad in law.

3. Mr. P.K. Bhansali, learned counsel for the respondents submitted that the petitioner had filed writ petition before this Court challenging the rate of royalty and there was a stay order obtained by the petitioner, so the assessment of royalty for the years prior to 17.3.85 could not be finalised and assessment proceedings relating to royalty were finalised as late as 4.11.89 and so after finalisation of the assessment orders, amount of royalty could be fixed on 10.11.89. Apart from that, the revision would be for the span of five years and the span of five years would begin from the date initial grant or from the date of renewal of the mining case and for any span of five years, at any time during the span revision can be ordered to be effective from the date of commencement of the span of five years. So under the second proviso to sub-rule (3) of rule 18, the demand has been rightly created on the basis of revision made on 10.11.89.

4. The main question that arises for consideration is as to whether the revision of dead rent made on 10.11.89 would be effective from that date or it would be effective for the earlier years of the span of five years. Admittedly, the span of five years would commence from 17.3.85. So the question would be as to whether revision would take effect from 17.3.85. This question has to be determined as a matter of law and whether non-finalisation of assessment of the royalty would have any effect with regard to the right to recover dead ren

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