Jharkhand High Court
Steel Authority Of India Ltd. vs State Of Jharkhand & Ors. on 25 August, 2011
Author: Jaya Roy
Bench: Jaya Roy
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1281 of 2006
M/s Misrilall Jain & Sons & Anr. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2052 of 2006
Banwarilal Newatia Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2007 of 2006
M/s Shah Brothers Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2266 of 2006
Padam Kumar Jain Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1498 of 2006
Giridih District Crusher Owners Association
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 5831 of 2005
Ranchi Zila Crushers Association & Ors.
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 3168 of 2006
M/s Gurucharan Ram and Sons & Anr
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2612 of 2006
Cossimbazar China Clay Mines (P) Ltd.
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1297 of 2006
M/s Castron Technologies Limited Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1267 of 2006
Radha Krishna Jaiswal Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 3906 of 2006
Sarju Prasad Mehta Vs. The State of Jharkhand & Ors
With
W.P.(C) No. 5014 of 2006
Pawan Kumar Agarwal & Ors. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 4883 of 2006
Ram Sewak Yadav Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 5655 of 2006
Castron Mining Limited Vs The State of Jharkhand & Ors.
With
W.P.(C) No. 4169 of 2006
Dhanbad District Crusher Owner Association & Anr.
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2217 of 2006
Rajendra Prasad Mehta Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 362 of 2007
Sri Kishan Gordhandas Majithia Vs. The State of Jharkhand & Ors.
With
2
W.P.(C) No. 670 of 2007
Kalinga Minerals Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2574 of 2006
M/s D.M. Minerals Pvt. Ltd. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 6435 of 2005
Bharat Raj Singh Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1928 of 2006
Tata Steel Ltd. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1750 of 2006
Gyan Chand Prasad Agarwal Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1021 of 2006
Vivek Garg Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1032 of 2006
Bajrang Prasad Agarwal Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1439 of 2006
Mahendra Prasad Mithal & Anr. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1884 of 2006
Jaiwanti Kumari Bhagat Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1958 of 2006
The Jain China Clay Mines Private Ltd. & Another
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2078 of 2006
Ganga Engineering Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1581 of 2006
Umesh Prasad Agarwal Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1720 of 2006
Karanpura Development Company LtdVs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2342 of 2006
M/s Standard Mercantile Company (Mining Division) Pvt.Ltd. & Anr.
Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2680 of 2006
Durgesh Kumar Mishra & Anr. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2358 of 2006
M/s Bharat Minerals Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2359 of 2006
Mrs. Renuka Pati Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2361 of 2006
M/s Bharat Minerals Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 893 of 2006
Hardeo Singh Yadav Vs. The State of Jharkhand & Ors.
3
With
W.P.(C) No. 854 of 2006
Hardeo Singh Yadav Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 596 of 2006
The Associated Cement Companies Ltd.Vs.The State of Jharkhand & Ors.
With
W.P.(C) No. 1323 of 2006
Krishna Kumar Poddar Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1369 of 2006
Sri Durga Cememnt Company Ltd.Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1398 of 2006
Sunil Kumar Singh Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2495 of 2006
M/s Valley Refractories Ltd. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1217 of 2006
Tata Steel Ltd. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1253 of 2006
Aley Hassan Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1463 of 2006
Tarkeshwar Mehta & others Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 398 of 2006
C.M. Gupta Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2233 of 2006
Steel Authority of India Limited Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2199 of 2006
The Rameshwara Jute Mills Ltd Vs. The State of Jharkhand & Ors
With
W.P.(C) No. 1877 of 2006
M/s Singhbhum Minerals CompanyVs. The State of Jharkhand & Ors.
With
W.P.(C) No. 1797 of 2006
Sutherpur Minerals Pvt. Ltd. Vs. The State of Jharkhand & Ors.
With
W.P.(C) No. 2057 of 2006
Shailendra Kr. Mehta Vs. The State of Jharkhand & Ors.
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MRS. JUSTICE JAYA ROY
- -----
For the Petitioners: M/s Dipankar Gupta, V. Shivnath,
P.K. Prasad, Sr. Advs.
M/s Ananda Sen, N.K. Pasari,
Indrajit Sinha, R.Kumar,N.Tiwari,
B. Kumar, S. Gadodia, V. Divya,
N. Kishore, Advocates
For the Respondents : M/s A.K. Sinha, Advocate General,
Dr. S.K. Verma, Sr. S.C. I, B. Shastri,
J.C to Sr. S.C. I, R.P. Singh, J.C to G.P. II.
4
Reportable ------ Dated 25th August, 2011
By Court We are benefited by the remand order passed by the Hon'ble Supreme Court in these matters reported in (2010) 5 SCC 324 as State of Jharkhand & Ors. Vs. Misrilal Jain & Sons & Anr.. The Hon'ble Supreme Court had remanded these matters, setting aside the judgments passed by this Court in a group of 46 writ petitions which were decided by a common judgment dated 7th May, 2007 and other writ petitions by a Division Bench of this Court by a separate judgment but following the judgment dated 7th May, 2007.
2. As per the facts of the case, on 17.05.2005, the State Government issued a resolution for fixing the surface rent for the minor and major mineral leases as equal to 5 % of the latest market price of land as determined for that particular area by the Deputy Commissioner-cum-District Registrar and it shall be collected by District/Assistant Mining Officer from the lease holder and this rate shall be variable from time to time in proportion to the market price determined by Deputy Commissioner-cum-District Registrar. In pursuance of the said resolution, demand notices were issued to the major and minor mineral lease holders. Those impugned demand notices were quashed by the High Court by judgment dated 7th May, 2007. The Hon'ble Supreme Court, while setting aside the judgment of the High Court, observed that resolution dated 17th June, 2005 was issued by the State Government as an Executive Order but from the judgment of the High Court dated 7th May, 2007 it is not clear about the resolution dated 17th June, 2005 as High Court in Paragraph 29 says:
"29.Taking into consideration the Act and the Rules, we have no doubt in our mind in holding that the State legislature has no legislative competence to issue executive order for revision of 5 surface rent in respect of the mining lease of major minerals as its jurisdiction is fully occupied by the Central Act and the Rules."
(emphasis supplied)
3. The Hon'ble Supreme Court noticed the observations made in the judgment dated 7th May, 2007 passed by the High Court that the State legislature has no legislative competence to issue Executive Order for revision of surface rent and that the said resolution is beyond the competence of the State legislature so that the Division Bench carried the impression as if resolution dated 17th June, 2005 has been issued by the State legislature. Thereafter, the Hon'ble Supreme Court observed that the legality and validity of the said resolution was examined by the High Court partly on that assumption thereafter, it has been also observed that the aspects which were germane for consideration of the controversy have been overlooked and certain irrelevant aspects have been taken into consideration and, therefore, the judgment dated 7th May, 2007 and other judgment deciding the other writ petitions were set aside and the writ petitions have been remanded to this Court for deciding afresh.
4. Heard learned counsel for the parties.
5. It will be appropriate to state the facts, in brief, that the writ petitioners are having lease hold rights for major and minor mineral excavation under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and rules framed under this Act of 1959; especially framed by the Central Government for major minerals and for minor minerals by the State, and lessees were paying the surface rent since they entered into agreement of lease and this fact is not in dispute. The controversy cropped up because of the resolution dated 17th June, 2005, which, in fact, is an order of 6 the State Government and is an Executive Order of the State Government and not an enactment so as to prescribe new surface rent or amend the existing law relating to surface rent.
6. The learned Advocate General fairly and frankly stated that the resolution dated 17th June, 2005 published in the Gazette on 1st July, 2005 is not a Rule, nor it has been issued under the legislative power of the State Government but it is an Executive Order.
7. The said order purported to have been issued by exercising power under Rule 27 (1) (d) of Mineral Concession Rules, 1960, which prescribes surface rent for the lease for major minerals as well as issued under Rule 29 (1) (gh) of the Jharkhand Minor Mineral Concession Rules, 2004 which covers the surface rent for mines leased for minor minerals excavation. The root question is whether by this order the State has exceeded its power and increased the surface rent of the lease of both natures beyond its competence as well as contrary to the provisions made in the Act of 1957 as well as Rules of 1960 and Rules of 2004.
8. Learned counsel for the petitioners drew our attention to the various provisions of the Constitution including Item No. 23 in List II of the VII Schedule, Item No. 54 in List No. I of the same VII Schedule and submitted that the subject relating to the mining operation falls within the domain of Central Government only and there is a declaration to the effect under Section (2) of the Mines and Minerals Development Act, 1957 which unequivocally declared that in the public interest the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act of 1957. The position is not in dispute as it has not been disputed and rightly has not been disputed by the State.
9. Learned senior counsel for the petitioners, Mr. Gupta, drew 7 our attention to the other provisions under the Act of 1957 which provides for provisions for the royalty, dead rent as well as surface rent. Rule 27 (1)(d) of Mineral Concession Rules, 1960, prescribes the conditions of such leases, which are as under:
"27. Conditions--(1)Every mining lease shall be subject to the following conditions:-
(a)..........................
(b).........................
(c)........................
d)the lessee shall also pay, for the surface area used by him for the purpose of mining operations, surface rent and water rate at such rate, not exceeding the rent revenue, water and cesses assessable on the land, as may be specified by the State Government in the lease;"
10. Another relevant provision for our purposes will be Section 13(2)(i) of the Mines and Minerals (Development and Regulation) Act, 1957, and empowers the Central Government to make rules in respect of minerals, which is as under:-
"13. Power of Central Government to make rules in respect of minerals.-
(1) The Central Government may, by notification in the Official Gazette, make rules for regulating the grant of reconnaissance permits, prospecting licences and mining leases in respect of minerals and purposes connected therewith.
(2) ........
(a) .......
(b) ......
(c) .......
(e) ......
(f) .......
(h) .......
(i) the fixing and collection of fees for [reconnaissance permits, prospecting licences or mining leases] surface rent, security deposit, fines, other fees or charges and the time within which and the manner in which the dead rent or royalty shall be payable;]
11. Power of the State Government to make rules has been confined to only in respect to minor minerals which is clear from 8 Section 15 of the Act of 1957, which is as follows:-
"15. Power of State Governments to make rules in respect of minor minerals - (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of [quarry leases, mining leases or other mineral concessions] in respect of minor minerals and for purposes connected therewith.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) ......
(b) .....
(c) .....
(e) ....
(f) .....
(g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which this shall be payable;"
12. In exercise of powers conferred by Section 15 of the Act of 1957, the State of Jharkhand framed the rules which are Jharkhand Laghu Khanij Samnudan Nimavali, 2004 (Jharkhand Minor Mineral Concession Rules, 2004, hereinafter referred as Rules of 2004). Rule 29(1)(gh) prescribes the maximum limit for charging surface rent for mining leases for minor minerals excavation. Rule 29(1)(gh) is as under:-
"Rule 29(1) .........................
(Ka) ................................. (kha) ................................
(g) ....................................
(gh) Pattedhari dwara upyog me laye gaye/dakhal kiye gaye bhutal chetra ka bhutal lagaan oos dar se dey hoga jo oos chestra ke bhu-rajaswa dar se aadhik na ho."
Surface rent from the lease holder shall be according to its use/occupation at the rate which is not exceeding the rate of land revenue of that area [English Translation].
13. Therefore, the State has no power to charge surface rent for major mineral lease beyond the permissible limit as given in Rule 27(1)(d) of the Rules of 1960, which has prescribed the maximum 9 extent of the charge which can be charged from the lease holders i.e., not exceeding land revenue and furthermore which should have been prescribed in the lease itself. For the minor mineral leases as can be noticed form Rule 29(gh) of the Rules of 2004 that lease for minor mineral also the maximum surface rent can be charged to the extent not exceeding the rent revenue of the area. Here in all cases, the State Government itself has admitted in the resolution dated 17th June, 2005 that the State was charging the surface rent at the rate equal to the land revenue applicable for area which is clear from paragraph 3 of the resolution dated 17th June, 2005 and it has been mentioned in this resolution itself that the said amount is too low as compared to the amount sought to be charged which is equal to the rent payable for commercial properties. Therefore, the State cannot dispute that the amount which was charged from the lease holders of the major and minor minerals was less and will be less if charged according to the maximum of the land revenue prescribed for the area. The Resolution dated 17th June, 2005 itself has been issued to charge higher surface rent than the rate of land revenue of the area and the very basis for charging surface rent has been changed contrary to above statutory provisions by mere administrative order. Therefore, the resolution dated 17th June, 2005 being contrary to Rule 27(1)(d) of the Rules of 1960 and 29 (gh) of the Rules of 2004is liable to be quashed and cannot be given effect to by the State Government.
14. We are of the considered opinion that the relevant provision empowered only the Central Government to frame Regulations and Rules so far as major minerals are concerned. Section 3(g) specifically empowers and authorizes the Central Government in the matter of fixing the surface rent, whereas under section 15(1A)(g), 10 there is a provision for fixing and collection of rent, royalty, fees, dead rents, fines or other charges and the time within which and the manner in which the above amount are payable and for that, the State Government has been given power. Section 14 of the Act, 1957 has made it clear that so far as minor minerals are concerned, Section 5 to 13 shall have no application. Therefore, it was necessary to enact section 15 empowering the State Government for making regulations for minor minerals. If these two sections are read with Rule 27(1)(d) of the Rules of 1960 for major minerals and Rule 29(1) (gh) of the Rules of 2004 for minor minerals, then these statutory Rules have prescribed the followings:-
(1) Surface rent shall not exceed the land revenue; (2) It was required to be specified by the State Government in the lease;
(3) Difference between the Jharkhand Minor Mineral Concession Rules 2004 in Section 29(1) (gh) is that in this clause, it is not provided that such rate of surface rent must be specified in the lease itself.
15. Be that as it may be, the fact which remains is that the surface rent cannot exceed the land revenue which is apparent from rule 27(1)(d) of the Minor Mineral Concession Rules, 1960 and rule 29(1)
(g) of the Jharkhand Minor Mineral Concession Rules, 2004.
16. The learned counsel appearing for the State submitted that this is a State policy decision and it is not an effort to amend the Rule and once the policy decision is taken, the Courts are required not to interfere in such matters and the Government cannot remain static in the matter of recovery of the revenue which are natural consequences of the fruits of the properties of the State Government. Learned Counsel for the State relied upon the judgment delivered in the case of Balco Employees' Union (regd.) Vs. Union of India & 11 Ors. reported in (2002) 2 SCC 333 and also relied upon the judgment delivered in the case of (1992) Suppl. 3 SCC 217, which was a matter relating to the reservation policy but according to the learned counsel for the State where there is a gap, the State Government can issue Executive Order and if the Executive Order is not running contrary to any statutory Rule or law then that Executive Order cannot be questioned. It is also submitted by learned Advocate General that by notification dated 17th June, 2005 the State Government has only prescribed the manner, in which, the surface rent is to be charged and it has not altered any statutory provision. This argument of learned Advocate General itself supports the view taken by us and it is not a case of filling up of gap or left out area of legislation which is sought to be covered by the impugned Resolution but Resolution is if given effect then it nullify the statutory provision. Neither the Resolution can be termed to be a policy decision and the policy cannot be against clear and unambiguous statutory provision.
17. At this juncture, we may also observe that learned counsel for the respondent State tried to suggest that the land revenue is nothing but a rent and rent is an amount which is naturally a profit which can be earned by the owner of the land by giving right of its use to any other person. Learned Advocate General drew our attention to the definition of land revenue given in Black's Law Dictionary, 7th Edition, at page 1319, which is as under:-
"Land Revenue - Revenue derived from lands owned by the Crown in Great Britain. Crown lands have been so largely granted away to subjects that they are now transferred within very narrow limits."
18. This definition does not support the stand of the State and 12 normally land revenue is understood to mean revenue for the land payable to the State Government. The definition relied upon by the learned Advocate General also clearly indicates that even in Black's Law Dictionary land revenue has been described as revenue derived from lands owned by the Crown in Great Britain. In the same Dictionary, rent separately is defined and it says that "consideration paid, periodically for the use or occupancy of property, especially for real property". The definition of rent and land revenue in the Black"s Law Dictionary is different and we are of the considered opinion that the land revenue is normally accepted to be the revenue payable by an agriculturist to the State Government and we can take judicial notice of the fact that for agricultural land, the rent is fixed by Statute, which is normally not the rent in commercial sense as land revenue is in few rupees even for acres of land which cannot be rent as market rent for the area leased for agricultural purpose. Be that as it may be, so far as the said issue, which has been raised by the learned Advocate General, is based only on the basis of hypothetical aspects without support of any law and when the rules framed by the Central Government as well as State Government referred to above clearly say that surface rent shall be to the extent of land revenue, then it was the duty of the State Government to show that even thereafter, by resolution dated 17th June, 2005, the State Government is seeking to charge annual surface rent equivalent to the land revenue applicable to the area wherein the mine is situated.
19. Learned counsel for the petitioners also vehemently submitted that by this resolution the State Government has decided to levy the rent on the basis of the entire land purported to have been leased out and prescribed in the lease deed irrespective of whether the 13 lessee is in fact using that land or whether the lessee can use or not because of the statutory restriction in the cases where there is even reserve forest falling within the leased area. Learned counsel for the petitioners drew our attention to the conditions of the lease which are statutory in nature prescribed in the Rule itself, to justify their stand and to submit that surface rent can be charged from the lessee only of the area which is in mining operation and not other appertaining land falling within the area delineated in the lease deed. Learned counsel for the petitioners drew our attention to the certain provisions under the Act and Rules to justify their stand by submitting that for royalty the charges are levied according to the excavation of the minerals and for the dead rent there is specific mention that the dead rent will be charged for the entire area under the lease and such language has not been used when the provision was made for charging of the surface rent and that clearly means that the legislature has intentionally used different languages for different charges separating the surface rent to be charged and dead rent to be charged by taking into account the entire land purported to be leased out and mentioned in the lease deed.
20. Learned counsel for the petitioners also submitted that charging the amount under the resolution dated 17th June, 2005 will not only be unreasonable and exorbitant but also is contrary to law, in view of the fact that the Deputy Commissioner-cum-District Registrar of an area decides the market rate of the area, for small area falling into its own jurisdiction and, therefore, in that situation it will be very difficult to comprehend how the lease which was granted for excavation of the particular mineral but falling in different area can have different surface rent whereas the occupier of that land-lessee can only excavate the mineral of the similar 14 nature but shall have to pay different surface rent and that too because of falling it nearer to the commercial area nearer to the city or because of falling it away from the city area etc. The consideration taken for taking impugned resolution is wholly irrelevant for the purpose of charging surface rent under the provisions of Act of 1957 and Rules framed thereunder.
21. Learned Advocate General appearing for the State also submitted that in changed circumstances, when the surface rent was fixed about more than 45 years ago, it was found just and reasonable to increase surface rent, which is apparent from the resolution in question. It is submitted that even in the year 1965, it was opined that for mining area, surface rent should be charged according to commercial rent and even in the year 1962, minimum rent was fixed to be Rs.30/- per acre as prescribed by the Divisional Commissioner, Dhanbad, for urban and semi-urban area and the State Government is also of the opinion that mining operation is nothing but a commercial activity and therefore, there is reasonable reason and basis for taking a decision and according to learned Advocate General, the decision has been taken belatedly and should have been taken earlier in the light of the recommendation of the Commissioner of Mines and Geology dated 30th September, 1965. If State or the Central Government wants to increase the surface rent, then mere reason without amending the laws cannot authorise the State to increase surface rent by taking an administrative decision without amending the law.
22. The resolution dated 17th June, 2005, clearly indicates that the State took the decision on the basis of the recommendation of the Commissioner of Mines and Geology given as back as on 30th September, 1965, which in whatever context had only equated 15 mining operation with commercial operation rather than agricultural operation but how it has been equated and accepted by the State Government is not clear from the pleadings submitted by the respondent-State and particularly, when the lands are generally classified as residential, commercial, industrial, agricultural nature as well as mining land and statutorily a land is declared as Mining Area under the Act of 1957. A mining operation is permissible only when the area is declared as mining area. The industrial activity also involves commercial activity and agricultural activity also involves commercial activity but that does not allow the nature of the land to be converted into, from one form to another form because of involvement of one of the activity to be of another nature. The mining is a very specific purpose for which leases are granted with several restrictions, which are apparent from the Statutory Form 'K' containing several paragraphs including Part II describing powers and privileges to be exercised and enjoyed by the lessee/lessees subject to restrictions and conditions in Part III. The restrictions and conditions prescribed in Part III are very relevant. In sub-clause (1), it is provided that no building or thing shall be erected, set up or placed and no surface operations shall be carried on in or upon any public pleasure ground, burning or burial ground or place held sacred by any class or persons or any house or village site, public road or other place which the State Government may determine as public ground, nor in such a manner as to injure or prejudicially effect any buildings, works, property or rights of other persons and no land shall be used for surface operations which is already occupied by persons other than the State Government for works or purposes not included in the lease. Therefore, a mining lease can be and generally of a large chunk of area wherein even the public road, 16 burial, village sites and buildings and even forest and reserved forest may be there. Be that as it may be, in mining lease, the right to excavate is given, which is not given in any other kind of lease. There is no similarity between commercial activity and mining activity except one of the component of commercial activity may be inherently within mining business of the leaseholders. The State Government failed to disclose how and why mining operation has been equated with an activity of commercial nature and even if so could have been done by the State Government in its opinion, even then how the State Government could have charged surface rent beyond the rates statutorily prescribed by the Central Government for major minerals in Rule 27(1)(d) and contrary to the rules framed by the State of Jharkhand itself as provided under Rule 29(1)(g). Therefore, in resolution dated 17th June, 2005, on irrelevant consideration, the nature of the mining operation has been sought to be converted from mining to commercial activity and further, by this mode, the State Government has increased surface rent beyond the land revenue, which is beyond the maximum limit of land revenue of the area.
23. In view of the above reasons, we are of the considered opinion that no effect can be given to the resolution dated 17th June, 2005, published in the Gazette of 1st July, 2005, and consequently no liability can be fastened on the leaseholders on the basis of the said resolution and the State can charge the surface rent only to the extent of land revenue as provided under Rule 27(1)(d) of the Rules of 1960 for major minerals and under Rule 29(1)(g) of the Rules of 2004 for minor minerals.
24. So far as the liability of the leaseholders to pay surface rent to the extent of land, which is used for mining operation and whether 17 the State can charge surface rent for the entire lease area is concerned, they are not relevant for the purpose of deciding lease obviously in view of the fact that the petitioners were paying surface rent and that charging of the surface rent by the State was never challenged before and therefore, it cannot be the issue for deciding the validity of resolution dated 17th June, 2005. The resolution dated 17th June, 2005 cannot give cause of action to the writ petitioners to reopen the issue whether the surface rent which the lessees are paying before Resolution dated 17th June, 2005 was in excess to their liability which has no direct or even in direct relevance in these writ petitions.
25. In view of the above discussions, the writ petitions are allowed and Resolution dated 17th June, 2005 is quashed and it is held that the State Government cannot charge surface rent beyond the maximum limit of the land revenue applicable for area in which mines are situated. No order as to costs.
(Prakash Tatia, A.C J) (Jaya Roy, J) Dey/-Alankar/-