ORDER
R.R. Yadav, J.
1. Instant writ petition has been filed by the petitioner seeking reliefs to issue a writ of mandamus directing the respondents
to include lime stone discovered in the leased area granted to him on 9-3-76, Anx. 1 to the writ petition, and also for quashing the order Anx. 5 dated 26-2-87 passed by the Central Government in exercise of its power under Section 30 of Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred as Act No. 67 of 1957) read with Rule 55 of the Mineral Concession Rules, 1960 (hereinafter referred as Rules of 1960) directing him to apply separately for grant of mining lease for lime stone (major mineral) as envisaged under Rule 24 of the Rules of 1960.
2. The relevant facts in brief, which have given rise to this writ petition, are that the petitioner was granted mining lease on 9-3-76 for extracting Calcite minerals for a period of twenty years over an area of 129.50 hectares in village Perwa, Pargana Rewdar, District Sirohi. It is also averred in the writ petition and also revealed from the perusal of Geological report that along with mineral Calcite lime stone was also discovered in the leased area granted to the petitioner and none of these minerals can be mined independent of other. The mining of one of these minerals shall naturally involved extraction of other inter-twined mineral.
3. It is also alleged in the writ petition that the petitioner moved an application for inclusion of lime stone in his lease deed dated 9-3-76, Anx. 1 to the writ petition, which was refused by the Director of Mines and Geology, Udaipur vide his order dated 26-4-79, Anx. 3 to the writ petition.
4. Aggrieved against the order dated 26-4-79 passed by the Director of Mines and Geology, Udaipur, the petitioner made a representation to the State Government which too was rejected vide order dated 28-6-83, Anx. 3-A to the writ petition.
5. Aggrieved against the orders passed by the respondent No. 3 and respondent No. 2 respectively, the petitioner preferred a revision before the Central Government under Section 30 of the Act No. 67 of 1957 read with Rules 54 and 55 of the Rules of 1960 that too was dismissed on 26-2-87, Anx. 5 to the writ petition.
6. Against the aforesaid orders passed by the respondents Nos. 1, 2 and 3, the present writ petition has been filed before this Court.
7. After service of notices, respondents Nos. 2, 3 and 4 have filed a joint return while irrespective of due service, no reply has been filed on behalf of respondent No. 1.
8. The respondents Nos. 2, 3 and 4 have denied the averments made in the writ petition in their reply and stated therein that the orders passed by the respondents Nos. 1, 2 and 3 are perfectly legal and valid and as such are not amenable to be challenged by way of filing a writ petition. In support of aforesaid assertions the answering respondents placed reliance on the sanction order dated 18-6-75, Anx. R/1 to the reply, which provides under condition No. 10 that in case the mineral lime stone is discovered while excavating Calcite in the leased area then the petitioner would be liable to obtain a separate lease under the provisions of the Rajasthan Minor Mineral Concession Rules, 1959.
9. I have heard the learned counsel on both the sides.
10. The short question which arises for determination in the present writ petition is whether the petitioner is entitled to get a lime stone included in the lease deed dated 9-3-76, Anx. 1, or he is required to obtain a separate lease for extracting lime stone within the meaning of Clause (b) of Sub-rule (1) of Rule 27 of the Rules of 1960 with preferential right over other applicants who have also applied for grant of mining lease for extracting lime stone in the leased area as envisaged under Sub-rule (4) and Clause (a) and Clause (b) of Sub-rule (5) of Rule 24 of the aforesaid Rules.
11. Indisputably the provisions contemplated under Clause (b) of Sub-rule (1) of Rule 27 of the Rules of I960 are ambiguous. The aforesaid provisions give an impression as if the petitioner has two options opened to him, firstly, he can get the lime stone included in his previous lease deed dated 9-3-76, Anx. 1 to the writ petition, granted to him for extracting Calcite alone or, secondly, he may apply for separate lease for extracting lime stone which is subsequently discovered after
grant of his earlier lease mentioned above. It is not disputed before me that after discovery of lime stone over the disputed leased area, other applicants have also applied for grant of mining lease for extracting lime stone but the petitioner instead of applying for separate lease for extracting lime stone, he moved an application for including lime stone in his earlier lease deed as stated above.
12. It is to be noticed that if the aforesaid interpretation of Clause (b) of Sub-rule(1) of Rule 27 of the Rules of 1960 is accepted then in my opinion such interpretation would make the mandatory provisions envisaged under Sub-rule (4) and Clause (a) and Clause (b) of Sub-rule (5) of Rule 24 of the aforesaid Rules unworkable. Apart from aforesaid redundancy of Sub-rule (4) and Sub-rule (5) of Rule 24 of the Rules of 1960 the said interpretation would lead to confusion of ideas and misunderstanding of law envisaged even under Clause (a) of Sub-rule (1) of Rule 27 including earlier part of Clause (b) of Sub-rule (1) of Rule 27 of the said Rules.
13. To my mind, the expression ‘such mineral is included in the lease or’ is to be interpreted with such ideas with which its predecessor expression ‘every mining lease’ shall be subject to the conditions enumerated under Rule 27 of the Rules of 1960 would be proper. For deeper understanding about interpretation of the expression ‘such mineral is included in the lease or’ the relevant provisions of Rule 27 of the Rules of 1960 are quoted herein below for ready reference:–
“27. Conditions.– (1) every mining lease shall be subject to the following conditions :
(a) the lessee shall report to the State Government the discovery in the leased area of any mineral not specified in the lease, within sixty days of such discovery;
(b) if any mineral not specified in the lease is discovered in the leased area, the lessee shall not win and dispose of such mineral unless such mineral is included in the lease or a separate lease is obtained therefor;
XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX
14. It is well to remember that in such a situation intention of Rule making Authority is to be ascertained and to be gathered from survey of Act No. 67 of 1957 and the Rules of 1960 so that this Court may be able to give effect to the will of the Rule making Authority and construction put to Clause (b) of Sub-rule (1) of Rule 27 of the Rules of 1960 may not run counter to the legislative intent of the Rule making Authority.
15. Further for deeper understanding of the controversy involved in the present case the definitions of certain expressions given under Section 3 of the Act No. 67 of 1957 are to be noticed. Section 3(a) defines ‘minerals’ which includes all minerals except mineral oil. Section 3(c) defines ‘mining lease’ which means a lease granted for the purpose of undertaking mining operations and includes a sub-lease granted for such purpose. Section 3(d) defines ‘mining operations’ which means any operations undertaken for the purpose of mining any mineral. Section 3(e) defines ‘minor minerals’ which means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. It is further to be noticed that major minerals has not been defined under the Act No. 67 of 1957. However, under Sub-section (3) of Section 4 of the Act No. 67 of 1957 it is provided that any State Government may after prior consultation with the Central Government and in accordance with the Rules made under Section 18 undertake prospecting or mining operations with respect to any minerals specified in the First Schedule in any area within that State which is not already held under any prospecting licence or mining lease.
16. Admittedly in the present case lime stone is not included in the lease deed of the petitioner dated 9-3-76, Anx. 1 to the writ petition, Which finds place at serial No. 15 of the First Schedule of Act No. 67 of 1957. According to First Schedule of Act No. 67 of 1957, lime stone except when it is used to kilns for manufacture of lime as building materials would be treated to be major mineral or
specified minerals. It goes without saying that in the present case the lime stone discovered in the leased area is of marble cement grade which cannot be used in kilns for the manufacture of lime as building materials. Since the nature of the lime stone discovered in the leased area does not find place within the definition of minor minerals, therefore, it has to be treated as specified minerals within the meaning of Sub-section (3) of Section 4 of Act No. 67 of 1957. It is pertinent to mention that grant of lease of the lime stone discovered under leased area as well as its renewal in the present case would be subject to mandatory provisions envisaged under Sections 4, 5, 6, 7 and 8 of Act No. 67 of 1957.
17. It would be profitable to mention that in exercise of powers conferred under Section 13 of Act No. 67 of 1957 the Central Government has framed the Rules of 1960 for granting mining leases in respect of lime stone which is not disputed by the learned counsel for the parties. Sub-rule (4) of Rule 24 of the Rules of 1960 provides that where an application for a mining lease, for a mineral or minerals not specified in existing mining lease or mining leases is made for the whole or part of the area held under mining lease by a person other than the lessee, the State Government shall notify this fact by Registered Post/ Acknowledgement Due to the person who already, holds mining lease for another mineral in the land applied for. Clause (a) of Sub-rule (5) of Rule 24 of the Rules of 1960 further provides that if under receipt of information referred to in Sub-rule (4) from the State Government, the lessee applies either for prospecting licence or mining lease for newly discovered mineral or minerals within six months from the date of communication of the information by the State Government, the lessee shall be preferred in respect of such grant. Clause (b) of Sub-rule (5) of Rule 24 of the Rules of 1960 provides that if the lessee fails to apply for prospecting licence or mining lease within six months then this fact will be intimated to the applicant by the State Government arid the State Government will consider the original application in accordance with the Rules.
18. A conjoined reading of Sections 4, 4A, 5, 6, 7 and 8 of Act No. 67 of 1957 together with Sub-rule (4) and Sub-rule (5) of Rule 24 as well as Rule 27 of the Rules of 1960 reveal a common genus running through these provisions to the effect that every one cannot be allowed to dig mines indiscriminately even on private land and as far as government properties are concerned, it is only the grant of lease which confers contractual rights to undertake mining operations for the purpose of mining any mineral subject to the terms and conditions stipulated in a lease deed executed between the State and the lessee. If a lessee is granted a lease to extract a particular mineral and he discovers any other mineral in his leased area, a statutory obligation is cast upon such lessee to report to the State Government about the discovery in the leased area of any mineral not specified in his lease within sixty days from such discovery. A further statutory duty is also cast upon the lessee that if new mineral is discovered in his leased area which is not specified in his lease deed then he shall not win and dispose of such mineral.
19. The aforesaid discussion indicates that there is absolute prohibition for a lessee under Act No. 67 of 1957 and under the Rules of 1960 to win and dispose of a newly discovered mineral which is not specified in his lease deed. If a new mineral is discovered which is major mineral (specified mineral) under the First Schedule of Act No. 67 of 1957 then the lessee is required to move an application under Sub-section (3) of Section 4 of the aforesaid Act and such application is required to be disposed of by State Government after prior consultation with Central Government as provided under Rule 24 of the Rules of 1960 regulating procedure for disposal of such application.
20. In the present case lime stone is not included in the lease deed of the petitioner, therefore, Sub-section (3) of Section 4 of the Act No. 67 of 1957 can be pressed into service and scope of Clause (b) of Sub-rule (1) of Rule 27 of the Rules of 1960 cannot be allowed to travel beyond the scope of the aforesaid section. The common genus for grant of separate lease is
oozing from the mandatory provisions engrafted under Act No. 67 of 1957 and Rules of 1960 as discussed in the earlier part of this order. I am also fortified in taking the aforesaid view from the mandatory provisions postulated under Clause (b) of Sub-rule (5) of Rule 24 of the Rules of 1960 which clearly mandates that if the lessee fails to apply for prospecting licence or mining lease within six months then this fact will be intimated to the applicant by the State Government and the State Government will consider the original applications in accordance with the rules. Indisputably many other persons have applied for grant of lease for lime stone discovered under the leased area of the petitioner, therefore, if he fails to apply within the specified period of six months for grant of lease then the applications of such persons which fall within the purview of Sub-rule (4) of Rule 24 of the Rules of 1960 would he considered by the State Government and preferential claim of the petitioner to obtain lease for new mineral discovered in the leased area, will be deemed to be washed off by necessary implication.
21. The phraseology used under Clause (a)
and Clause (b) of Sub-rule (1) of Rule 27 of the
Rules of 1960 also indicate about the afore
said common genus running in these provisions which speak that the lessee shall report
to the State Government about discovery in
the leased area of any mineral not specified in
his lease within sixty days of such discovery
and he shall not win and dispose of such
mineral.
22. In my opinion the expression ‘such mineral is included in the lease or’ is one of the species of the common genus oozing from the provisions mentioned above of Act No. 67 of 1957 together with the provisions of the statutory Rules of 1960 to obtain separate lease wherever and whenever a new mineral is discovered in leased area. I am further of the view that the expression used under Clause (b) of Sub-rule (1) of Rule 27 of the Rules of 1960 ‘such mineral is included in the lease or’ are superfluous words used by the Rule making Authority due to unskillfulness of the drafts-manship. In order to make all the provisions
of Act No. 67 of 1957 as well as all the provisions of Rules of 1960 workable, I reject the aforesaid surplus words used by Rule making Authority by extending the principle of Rule of construction of Ejusdem Generis.
23. After excluding the surplus words ‘such mineral is included in the lease or’ the Clause (b) of Sub-rule (1) of Rule 27 of the Rules of 1960 would read thus:–
“27(1) xxx xxx xxx xxx xxx xxx xxx (a) xxx xxx xxx xxx xxx xxx xxx xxx
(b) if any mineral not specified in the lease is discovered in the leased area, the lessee shall not win and dispose of such minerals unless a separate lease is obtained therefor.”
24. The aforesaid setting of Clause (b) of Sub-rule(1) of Rule 27 of the Rules of 1960 would be in consonance with Act No. 67 of 1957 as well as with statutory Rules of 1960. The exclusion of surplus words mentioned above would be capable to achieve the object which the Rule making Authority intended to achieve in such a situation where a new mineral is discovered in a leased area. I am of the view that if the superficial words ‘such mineral is included in the lease or’ are not declared to be surplus words by extending the rule of construction of Ejudem Generis then the mandatory provisions of Act No. 67 of 1957 as well as Rules of 1960 as discussed in detail in preceding paragraphs of this order would become unworkable and would lead to its redundancy. In order to make all the provisions of Act No. 67 of 1957 and all the statutory Rules of 1960 workable and to avoid redundancy of Clause (b) of Sub-rule (1) of Rule 27 of the aforesaid Rules, the only course open to this Court is to treat the words ‘such mineral is included in the lease or’ to be superficial by extending the principle of construction of Ejusdem Generis.
25. There is yet another reason to arrive at the aforesaid conclusion. Indisputably there is a specific stipulation in the sanction order dated 18-6-75, Anx. R/1, whereby the lease in favour of the petitioner was granted. The aforesaid sanction order clearly provides in its penultimate condition No. 10 that
in case the mineral lime stone is discovered while excavating Calcite in the leased area then the petitioner shall be required to obtain a separate lease under the provisions of the Rajasthan Minor Mineral Concession Rules, 1959. The aforesaid terms and conditions stipulated in Anx. R/1 to the reply is binding between the petitioner and the answering respondents. Now the petitioner is precluded to change his stand by making an application for including lime stone in his lease deed dated 9-3-76, Anx. 1 to the writ petition.
26. I have critically examined the orders passed by the respondents Nos. 1, 2 and 3 and after its perusal I am fully satisfied that neither the Director of Mines and Geology, respondent No. 3, nor State of Rajasthan, respondent No. 2, nor the Central Government, respondent No. 1, have committed any error in directing the petitioner to make a separate application for grant of lease for lime stone of marble cement grade and in such a situation I refrain to issue a prerogative writ making the orders passed by the respondents Nos. 1, 2 and 3 ineffective.
As a result of the aforementioned discussion, the instant writ petition lacks merit and it is hereby dismissed.
Both the parties are directed to bear their own costs.
Before parting with the order it is hereby made clear that in peculiar facts and circumstances of the present case the application moved by the petitioner for inclusion of lime stone in his earlier lease deed dated 9-3-1976, Anx. 1 to the writ petition, shall be treated to be an application for separate lease and it should be disposed of within a period of three months from today as contemplated under Rule 24 of the Rules of 1960.
