ORDER
Shylendra Kumar, J.
1. Petitioners two in number have come up to this Court being aggrieved by the orders passed by the Senior Geologist the 2nd respondent herein rejecting the applications of the petitioners for grant of renewal of mining leases in their favour and which came to be affirmed by the 1st respondent, Director of Mines and Geology in the revision petitions filed before him under Rule 53(1) of Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the Rules’).
2. The undisputed facts are that the 1st petitioner had been granted mining lease for a period of 5 years as per lease deed dated 7.1.1997 in respect of 8 acres of land in Sy.No. 150 and 151 of Itagi village, Shirahatti Taluk in Dharwad District for quarrying ordinary sand on the Tunga Bhadra river bed. Likewise the 2nd petitioner also had been granted quarry lease for over an area of 10 acres in Tungabhadra riverbed adjacent to Sy.No. 151 of Itagi village Shirahatti Taluk, District for a period of 5 years from 7.1.1997. After the death of the 1st petitioner, husband of the 2nd petitioner, the 2nd petitioner continued the mining operation on the lease land as legal heir. Both the petitioners had sought for renewal of the lease by filing applications on 29.12.2001. The applications were in consonance with the requirement of the Rules particularly under Rule 21(2) of the Rules. The 2nd respondent Senior Geologist after looking into the applications rejected the request for renewal as per order dated 1.1.2002 for the reason that the Government by notification dated 16.10.2000 issued under Rule 4 of the Rules read with Section 21 of the General Clauses Act 1897 had amended the provisions of Rules 21(1) and 21(2) and a second proviso having been introduced to the effect that nothing in this rule shall apply to grant of a quarrying lease to quarry ordinary sand and the grant of ordinary sand shall be by auction in accordance with the provisions of the Chapter IV A of the Rules and therefore renewal cannot be granted.
3. Petitioners being aggrieved by these orders had carried the matter in revision before the 1st respondent, Director of Mines and Geology and the revision petitions having been rejected by the 1st respondent as per order dated 28th March, 2002 wherein also the revisional authority indicated that the Government having changed the policy for grant of quarrying licence for ordinary sand to be by auction sale from year to year effective from 16.10.2000, renewal cannot be granted. Aggrieved by these orders petitioners have approached this Court with these Writ Petitions. It is urged that the order in question particularly Annexure E passed by the Revisional Authority is not inconsonance with the provisions of the Rules. The notification referred to and relied on by the authorities does not govern the situation of renewal of mining lease sought for by the petitioners and order of rejection is on an erroneous understanding and is not sustainable in law, that the Writ Petitions are required to be allowed by quashing the same.
4. Statement of objections has been filed on behalf of respondents. It is asserted that the relevant provisions of Rule namely Rule 21(1) and 21(2) of the Rules have been amended and that grant of quarrying ordinary sand is now required to be disposed of by auction in accordance with the provisions of Chapter IV A of the Rules, that subsequent to this notification sand is being allowed to be mined only as per the provisions of Chapter IVA, but nevertheless petitioners were allowed to mine during the currency of their lease period i.e.., up to 6.10.2002 and it is only thereafter petitioners were not allowed mining that even the area which had been granted by way of lease in favour of petitioners is being auctioned as per Chapter IVA of the Rules, that the petitioners cannot have any grievance in respect of the order passed by the 2nd respondent and as confirmed by the 1st respondent, that the petitioners have no right for seeking renewal of mining lease in their favour inasmuch as the land belonged to the Government and it is now the Government policy to grant right for quarrying ordinary sand only by way of auction sale of the land and from year to year and not by granting periodic lease, that the petitioners are not entitled for renewal in law that there is no scope for interference by this Court with the orders passed by the authorities and the Writ Petitions deserve to be dismissed.
5. I have heard Sri Krishna S. Dixit, learned Counsel for the petitioners and learned Government Advocate for the respondents.
6. Submission of Sri Krishna S. Dixit, learned Counsel for the petitioners is that in respect of renewal sought for by the petitioners the provisions of Rules 21(2) continued to operate, that an application for renewal is even now required to be disposed of in accordance with this rule, that the area in question being not a notified area under Rule 8B of the Rules provisions of Chapter IVA are not applicable, that even the proviso to Rules 21(1) and 21(2) which is relied upon by the authorities which reads as under:
“Provided that nothing in this rule shall apply to grant of a quarrying lease to quarry ordinary sand. The grant of ordinary sand shall be by auction in accordance with the provisions of the Chapter IVA of the rules”.
governs only a situation of grant of quarrying lease of ordinary sand and not a situation of renewal of such leases which had already been granted and as such this proviso also cannot exclude the operation of Sub-rule 2 of Rule 21 of the Rules and the order passed by the 2nd respondent and affirmed by the 1st respondent requires to be quashed. In this regard learned Counsel has pointed out that under the Scheme of the Act and Rules the word “grant” and “renewal” have been consciously used by the Legislature that these words have a special significance wherever they have been used, that wherever it is not necessary the usage of the word is avoided and in this regard learned Counsel points out the very first proviso to Rule 21 where the said proviso takes care of both situations of grant or renewal. In the matter of extending certain concessions to persons belonging to the category of weaker sections while in the second proviso it is only word ” grant” that is used and the word “renewal” for the purpose of excluding the operation of the Rule in so far as grant of quarrying lease to quarry ordinary sand is concerned, learned Counsel has pointed out to the proviso to Rule 25 where again in the context of maximum area of quarrying lease to be granted, the rule making authority has consciously used both words “grant” or “renewal” for the purpose of excluding operation of this particular rule in respect of quarrying lease of ordinary sand. Learned Counsel submits that when the use of word “renewal” is being consciously employed in difference places of these rules and it is not so employed in the second proviso to Rule 21 it is not possible to infer that the word “grant” can also include “renewal”, though if it were to be a situation where only in one place the word is used perhaps it could have been possible to interpret the word “grant” to also include ” renewal”. In this regard learned Counsel has referred to Maxwell’s interpretation of Statutes and the discussion about the Maxim
“expressio unius exclusio alterius” which has been explained in “Maxwell on the interpretation of Statutes” 12th Edition at item No. 293 and has relied on the decision of the Supreme Court as also the decision to contend that the authorities are not justified in rejecting the renewal on the premise that the provisions governing the grant or renewal of mining lease in respect of ordinary sand as per Chapter IV A being a provision for augmenting the revenue to the State an interpretation which helps to enhance should be preferred than to an understanding that may result in diminishing the revenue. Learned Counsel pointed out to the observation of the Supreme Court.
“Having heard the learned Counsel for the petitioner, as also the learned Counsel for the State and the private respondent, we are satisfied that the petition deserves to be allowed. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of the judgment. Third-party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi-judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the petitioner. No auction has taken place. No third-party interest has been created. The sand mine has remained unoperated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with GO issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.”
7. Learned Counsel submits in this regard that when the provisions of Chapter IVA is not made applicable expressly either by issue of a notification under Rule 8B or by amending the existing provisions of Sub-rule 2 of Rule 21, the normal operation of Rule 21(2) cannot be whittled down or negated by relying upon the policy for augmenting the revenue to the State.
8. Learned Government Advocate appearing on behalf of the State has submitted that the second proviso having expressly excluded operation of the Rule i.e… Rule 21 to grant of quarrying lease of ordinary sand and it having indicated that it is to be now governed by the Chapter IVA of the Rules and a renewal also being in the nature of grant of quarrying lease no exception can be allowed in respect of renewal. Learned Government Advocate submits that the object of the Government in introducing Chapter IVA was to ensure that all leases for quarrying ordinary sand should now be governed only by Chapter IVA and not Rule 21. This is the express intention and which was the policy of the Government now given statutory recognition by Chapter IVA and by making suitable amendment to Rule 21 by insertion of second proviso and as such the authorities are justified in rejecting the request for renewal by placing reliance of this provision of law.
9. Learned Government Advocate has also submitted that the land being in the ownership of the Government and the object of the land in granting such leases being only for getting revenue from such lease and the amended provisions which is introduced for augmenting such revenue to the State the intention of this provision should only be for achieving this object of augmenting the revenue and not for deprivation/ diminition of any revenue to the State.
10. Learned Government Advocate has also submitted that the intention of Rule as is sought to be interpreted by the learned Counsel for the petitioner may result in the rule being subjected to the vice of discrimination inasmuch as a person who is to be granted lease for the first time is now required to pay higher rent than a person seeking renewal who is allowed a concessional rent and amounts to showing bias in favour of the person seeking renewal. Learned Government Advocate submits that an interpretation which can lead to a situation of rendering a provision unconstitutional should be avoided and as such the second proviso to Rule 21 of the Rules should be so understood as to include situations of grant and renewal.
11. I have given my careful consideration to the submissions of learned Counsel at the Bar.
12. Learned Counsel for the petitioner has also met this argument on such interpretation the provisions being rendered unconstitutional for the vice of discrimination, by the defence of a valid classification or a reasonable classification inasmuch as there is distinction between persons seeking mining lease for the first time and those who are seeking renewal of mining leases. Learned Counsel submits that under the very scheme of the Act and Rules there is provision for renewal particularly as lessees are required to invest large amounts for carrying on mining operations and it is because of this reason the statute provided certain rights in favour of lessees.
13. The validity of the order passed by the 1st respondent as a revisional authority affirming the order passed by the 2nd respondent for rejecting renewal of mining lease is examined purely on the touch stone of the validity of the order in terms of the statutory provisions. These are not orders which could be examined in the context of any particular right of the petitioner. The question is whether the order passed by the 1st respondent is sustainable and the dismissal of the revision petition in is accordance with the statutory provisions. The question is answered in favour of the respondents if the rejection is supported by the Rules. From the discussions above it becomes clear that renewal of an application under Sub-rule 2 of Rule 21 can be avoided if a notification under Rule 8B is issued excluding the area in respect of which a lease has been granted or if an express provision is made as has been done in the first proviso. In the present case there is neither a notification under Rule 8B to exclude the operation of Rule 21 and applicability of provision of Chapter IVA nor any express provision excluding operation of Sub-rule 2 of Rule 21. While Sub-rule 1 of Rule 21 mentions situation of grant of a quarrying lease and Sub-rule 2 of Rule 21 mentions situation of renewal of a quarrying lease. A conscious distinction is maintained for grant and renewal. The second proviso only speaks for grant of lease of ordinary sand to be regulated by Chapter IVA. The grant is dealt with in Sub-rule 1 of Rule 21 and renewal is not dealt with under this provision. The renewal is dealt with only under Sub-rule 2 of Rule 21. As the word “renewal” is not figuring in the second proviso it cannot be inferred or stated that this proviso seeks to exclude the operation of sub Rule 2 of Rule 21 also. If this legal position does not find place under the Act or Rules the renewal application requires to be disposed of only in accordance with Sub-rule 2 of Rule 21 of the Rules and not with reference to any other provisions.
14. The impugned order is not sustainable inasmuch as the request for renewal is rejected on the ground that the Rules are not applicable and with reference to the provisions not relevant and for extraneous reasons.
15. Though Sri Dixit learned Counsel for the petitioner would urge that on quashing of orders passed by the authorities rejecting the renewal this Court should direct the respondents to grant renewal of the leases itself, I am not inclined to accept this request of the Counsel. It may be necessary for the authorities to consider the request for renewal in the light of the relevant provisions and then pass orders afresh as the matter is one for renewal of lease in respect of Government land.
15. In the circumstances this Writ Petition allowed. The impugned order Annexure E is quashed by issuing a writ of certiorari. The matter is remitted to the 2nd respondent Senior Geologist for consideration of the applications of the petitioners for grant of renewal in accordance with the provisions as indicated in the course of this order.
16. Rule issued and made absolute.
17. Learned Government Advocate appearing for the respondents has submitted that subsequent to the Government Order dated 16.10.2000 quarrying lease in respect of ordinary sand is only by auction. It is made clear that if such auction has already taken place and rights are given to any other third party the right of such third party shall not be disturbed till the expiry of the period of that grant.