A. K. MATHUR, J. - (1.) THIS writ petition and the writ petitions mentioned in Schedule A appended to this order have been placed before this Division Bench on reference being made by Hon'ble Mr. Rdjesh Balia, J. while disagreeing with the view taken by Hon'ble Mr. V. K. Singhal, J. in Sadanand vs. State of Rajasthan (1 ). The following two questions have been framed by the learned Single Judge which read as under : "1. Whether the power to relax a rule conferred on the Government under r. 65 of the Rules of 1986 also takes within it the power to substitute an existing rule with a new rule ? 2. Whether the State Government has authority under r. 65 of the Rules of 1968 to direct for charging of dead rent in a given case at rate different than the prescribed under the Rules, without amending the Rules itself?"
(2.) IN order to understand the controversy raised in these writ petitions, the facts given in the case of Hari Singh Vs. State of Rajasthan (D. B. Civil Writ Petition No. 155/1990) are taken into consideration : The petitioner by this writ petition has challenged the order of the State Government dated 24. 5. 1989 (Annex 7 ). whereby the State Government has issued an executive order directing that at the time of renewal of the mining lease for construction of brick kiln in Sri Ganganagar and Bikaner, the dead rent shall be charged not in accordance with the II Schedule but on the basis of the capacity of production of the brick kiln. This order is purported to have been issued by the Government in exercise of the powers conferred on it under Rule 65 of the Rajasthan Minor Minerals Concession Rules, 1986 (referred to hereinafter as 'the Rules of 1986 ). The petitioner was having 5. 19 bighas of land in Square No. 83/12 in Chak 14 M. D. Tehsil Gharsand Distt. Sri Ganganagar. He applied for conversion of this land for establishment of a brick kiln and after necessary enquiry the Collector, Sri Ganganagar vide his order dated 25. 3. 1989 converted the land for establishment of brick kiln. After this conversion the petitioner applied on 27. 3. 1989 before the respondent No. 3 for the purpose of grant of mining lease. On 24 4. 1989, the mining lease was granted to the petitioner. A copy of the same has been plaecd on record as Annex. 2. At the relevant time the dead rent amount was 4,516/which is evident from Item No. 7 of Annex 2 i. e. mining lease. After this, the petitioner by the letter dated 25. 4. 1989 was asked to deposit a sum of Rs. 1,129/- as advance ins alment of dead rent. The petitioner deposited the required amount of Rs. 1,329/- on 8. 5. 1989. The petitioner was granted on Short Term Permit after depositing the amount of Rs. 2,588/- for 1. 25 bricks. He deposited the amount of Rs. 2. 588/ -. Then again he was given a Short Term Permit on 23. 5. 1989, 6. 6. 1989 and 24. 6. 1989. Thereafter, the petitioner was asked to appear in the office of the respondent No. 12 on26. 6. 1989 for execution of the agreement. It is submitted that all the required formalities of submitting National Saving Certificates and stamps worth Rs. 830/- for the purpose of agreement were completed before 20. 6. 1989. The petitioner appeared in the office on 26. 6. 1989 in pursuance of the aforesaid letter. But the respondent No. 2 refused to execute the agreement and also refused to issue short term permit. The petitioner approached the Superintending Mining Engineer, Jodhpur. The petitioner asked to deposit Rs. 5,157/- for getting short term permit for 5 lacs bricks, which the petitioner deposited on 29. 9. 1989 and the petitioner was granted one short term permit for 1. 25 bricks on 29. 9. 1989 and another short term permit on 17. 10. 1989 and then on 1. 11. 1989. The petitionei again deposited a sum of Rs. 5,175/- but he was refused further short term permit and the agreement was also not executed. The petitioner was told by the respondent No. 2 that the dead rent cannot be accepted in pursuance of the order of the State Government dated 24. 5. 1989 and same will be charged on the basis of the production capacity, a copy whereof had been placed on the record as Annex. 7. This order of the State Government dated 24. 5. 1989 (Annex. 7) has been challenged by this writ petition. The learned Single Judge in the case of Sadanand. (supra) took the view that the Government has a power under Rule 65 to relax the condition for payment of dead rent under the II Schedule-on the basis of capacity of the kiln in respect of the districts Sri Ganganagar and Bikaner. Learned Single Judge in the case of Sadanand (supra) took the view that the letter of the Director, Mines and Geological Department Government of Rajasthan submitted to the Government of Rajasthan should be taken as a basis for this relaxation. However, the learned Single Judge found that on he envil of Article 14 of the Cons itution of India there is no reason to discriminate Sri Ganganagar and Bikaner districts. Therefore, the learned Judge observed as under in the case of Sdaanand (supra)- If the position of the adjoining district or other district is also same as prevailing in Shriganganagar and Bikaner then relaxing power in respect of Shri Ganganagar and Bikaner districts would be an arbitrary exercise, which would be violative of Article 14 of the Constitution of India, It is possible that those conditions which were prevailing in the districts of Shrigangangar and Bikaner might not be prevailing in other districts but the record must show that this factor was taken into consideration that is why a specific order was required to be passed for relaxing the condition under rule 65. In the present case, there is nothing on record to show exclusion of other districts from the purview of the power of relaxation under rule 65 and as such so long as similar treatment is not given to the leases of other districts, the petitioners cannot be discriminated. The order passed by the respondents making the provisions of Rule 65 applicable to the districts of Sri Ganganagar and Bikaner shall remain inoperative till such power has been exercised or considered in respect of the other districts. This case was cited before Hon'ble Balia,j. and Balia, J. expressed his reservation and he observed that the State Government cannot relax the Schedule appended to the Rules by an executive order and the power of relaxation does not amount to substituting a new provision in the Rules. Therefore, the learned Judge recorded his disagreement with the view taken by Hon'ble Singhal, J. and referred the matter to the Division Bench by framing two questions referred to above. In order to appreciate the controversy involved in the present case it will be relevant to refer certain provisions of the Act and the Rules having bearing on the subject. The operations of mines and minerals are governed by the Mines and Minerals (Regulation and Development) Act, 1957 framed by the Central Government (referred to hereinafter as 'the Act of 1957' ). Section 9 lays down the royalties governing the mining leases. Section 9 reads as under: 9 Royalties in respect of mining leases: (1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or his agent, manager, employee, contractor or sub-lessee from the leased area after such commencement, at the rate for the time being specified in Second Schedule in respect of that mineral. (2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or his agent, manager, employee, contractor or sub-lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. (2a) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, shall not be liable to pay any royally in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one third of a tonne per month. (3) The Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of four years".
(3.) SECTION 13 lays down the power of the Central Government to make rules in respect of minerals. SECTION 15 lays down the power of the State Government to make rules in respect of minerals. The excavation of land and digging out the sand for construction of the bricks is a minor mineral. Therefore, the State Government has a power to frame the rules for this mineral. SECTION 15 reads as under: 15. Power of State Governments to make rules in respect of minor minerals - (I) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry lease, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. (2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases, or other mineral concessions in respect of Minor mineral which are in force immediately before the commencement of this Act shall continue in force. (3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay royalty in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals. Provided that the State Government shall not enhance the rate of royalty in respect of any minor mineral for more than once during any period of four years. " In the purported exercise of the powers conferred by sub-section (1) of Section 15, the State Government has framed the Rajasthan Minor Mineral Concession Rules, 1986. Under the Rules of 1986 the mining leases are granted. We are not concerned with the procedure in the present case. However, the conditions are contained in Rule 18 of the Rules of 1986. One of the important condition which will have a bearing on the subject is condition No. 1, which reads as under: (1) The following conditions shall be included in every mining lease and if they are not so included shall be deemed to have been included therein: (a) The holder of a mining lease granted before the commencement of these rules, shall notwithstanding anything contained in the instrument of lease or any law or rules in force at such commencement, pay royalty in respect of any mineral removed by him from and/or consumed within the leased area after such commencement at the rates for the time being specified in Schedule 1 in respect of that mineral. (b) The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from and/or consumed within the leased area at the rate for the time being specified in Schedule I in respect of that mineral. (c) The State Government may, by notification in the Official Gazette, amend the Schedule I so as to enhance the rate at which royalty shall be payable in respect of any mineral in accordance with the provisions of these rules with effect from such date as may be specified: Provided that no enhancement in the rate of royalty shall be made before a period of 4 years from such previous enhancement. Condition 3 retates to payment of dead rent, which reads as under : (3) The lessee shall also pay for every year such yearly dead rent as may be fixed by the Government in quartertly instalments in advance, and if the lease permits the working of more than one mineral, the State Government shall not charge separate dead rent in respect of each mineral: Provided that the yearly deadrent at the time of initial grant shall be according to the rates specified in Schedule II. The rates specified in Schedule II shall, however, not be applicable at the time of revision of dead rent; Provided further that the competent authority may revise deadrent after every 5 years from the date of initial grant or of renewal of the mining lease in accordance with the following formula; Revised Dead rent=existing dead rent + 40% of Existing deadrent + Average excess royalty of the first four years of each span of 5 years: Provided further also that the lessee shall be liable to pay either dead rent or royalty in respect of each mineral whichever is higher but not both. " According to this condition, the dead rent has to be charged according to the rates specified in the Second Schedule and it can be revised after every 5 years from the date of initial grant or renewal of the mining lease in accordance with the formula mentioned above. Rule 65 lays down that the Government has a power to relax the rules. Rule 65 reads as under :- "65. Relaxation of Rules - The Government may relax any provision of these rules for reasons to be recorded in writing. " ;