Western Coalfields Ltd vs State Of Mah. & Anr
2016 Latest Caselaw 1843 Bom

       wp62.05                                                                             1



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                               NAGPUR BENCH

                          WRIT PETITION  NO.  62   OF  2005




                                                        
      Western Coalfields Limited,
      Coal Estate, Civil Lines,




                                                       
      Nagpur.                                             ...   PETITIONER

               Versus




                                           
      1. State of Maharashtra
         through the Secretary,
                             
         Revenue & Forest Department,
         Mantralaya, Bombay - 32.
                            
      2. Sub-Divisional Officer,
         Saoner, Tq. Saoner,
         District - Nagpur.                               ...   RESPONDENTS
      


      Shri S.C. Mehadia, Advocate for the petitioner.
   



      Mrs. M.N. Hiwase, AGP for the respondents.
                        .....

                                     CORAM :       B.P. DHARMADHIKARI &





                                                   P.N. DESHMUKH, JJ.

APRIL 26, 2016.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Mehadia, learned counsel for the

petitioner.

2. Mrs. Hiwase, learned AGP for the respondents is

seeking time as she points out that she is awaiting instructions

on facts disclosed in the petition. She also points out that this

Court granted interim order to the petitioner on 13.01.2005,

which continues to operate and hence the matter should be

adjourned to enable the respondents to file their reply.

3. Shri Mehadia, learned counsel submits that in

relation to Coal mines of the petitioner at Saoner, Patansaongi,

Pipla and Silewara, as Sub-Areas, in the notice of demand

dated 27.12.2004, an amount of Rs.8,91,84,725/- came to be

demanded alleging that the petitioner has not paid the surface

rent or dead rent.

4. Shri Mehadia, learned counsel has drawn our

attention to a detailed representation submitted by the

petitioner on 03.01.2005 pointing out errors of law and facts

committed by the Sub-Divisional Officer and reply thereto given

by the Sub-Divisional Officer on 05.01.2005. Shri Mehadia,

learned counsel submits that as per provisions of Mining

Concession Rules, 1960, particularly Rule 27(1)(c)(d), the dead

rent or surface rent can be demanded only in relation to lands

held under Mining lease. None of the lands at sub-areas

mentioned supra are held by the petitioners under a mining

lease and hence the demand itself is without jurisdiction. In

the alternative and without prejudice, he submits that if in

relation to very same land, royalty is paid by the petitioner,

dead rent cannot be demanded. He further points out that

dead rent and surface rent cannot be fastened upon the same

area and in the impugned demand notice, bifurcation of area

has not been done. A composite demand under both heads

have been made. He submits that these demands itself show

non-application of mind. In this background, he has invited our

attention to the reply sent by the Sub-Divisional Officer,

particularly its last but one paragraph, to urge that the relevant

material, to enable that authority to apply its mind in this

respect, is lacking. He contends that if the material was

lacking, it was incumbent for that authority to visit the mine or

the office of the petitioner to collect the data and thereafter to

proceed for assessment. He submits that such an exercise as

undertaken is unsustainable.

5. The learned AGP has again reiterated the request

for adjournment. She submits that considering the nature of

controversy, the reply of the respondents must be first taken on

record and thereafter it can be looked into.

6. During arguments, Shri Mehadia, learned counsel

has invited our attention to a communication dated 20.03.2002

sent by the Ministry of Coal and Mines Department of Coal,

Government of India to the Chief Secondary of Government of

Maharashtra. In it, while commenting upon the demand for

land rent/ surface rent, the Union of India has pointed out that

lands vesting in Central Government are free from all

encumbrances, as such, there is no case for demand of either

surface rent or land rent. It is also reiterated that there is no

legal provision to support such demand. It is also pointed out

that as per Section 18A of Coal Bearing Areas (Acquisition &

Development) Act, 1957, royalty is being paid to the State

Government by Coal Companies like the petitioner.

7. A perusal of Rule 27 of Mineral Concession Rules,

1960, shows that it stipulates conditions of a mining lease. As

per conditions incorporated in sub-clause (c), the lessee has to

pay yearly dead rent as stipulated therein to the State

Government. The proviso thereto stipulates that the lessee is

liable to pay either dead rent or royalty in respect of each

mineral whichever be higher in amount but not both. As per

sub-clause (d), the lessee has to pay for the surface area used

by him for the purpose of mining operations, surface rent and

water rent at rates as stipulated therein.

8. A perusal of these provisions show that the sub-

clauses noted supra prescribe conditions subject to which

mining lease can be enjoyed. When the petitioner specifically

contend that its mines at sub-areas Saoner, Patansaongi, Pipla

and Silewara respectively are not under any mining lease,

prima facie, the demand for dead rent or surface rent is

unsustainable. The sub-clauses mentioned supra clearly show

that in relation to the very same piece or portion of land held

under mining lease, dead rent as also surface rent cannot be

demanded. The levy is fastened on separate parts of land. The

Sub-Divisional Officer, who has demanded the surface rent or

dead rent, therefore, ought to have shown bifurcation of lands

and then calculated the amounts proportionately as per area

thereof. The petitioner has placed before us the details of lands

held by it at Saoner, Patansaongi, Pipla and Silewara. It is

specifically pleaded by it that these lands are not being held

under any mining lease but are acquired either under Coal

Bearing Act, 1957, or then under Land Acquisition Act, 1894.

We need not go into niceties of these pleadings.

9. The petition is pending before this Court since last

more than 10 years. This Court has granted interim relief to

the petitioner on 13.01.2005 and hence the respondents could

not recover either dead rent or surface rent.

10. Shri Mehadia, learned counsel has attempted to

point out to this Court that after the challenge to these

demands, for the first time Non Agricultural assessment was

attempted and that assessment has been questioned before this

Court. According to him, part of the grievance of the petitioner

has been accepted by the learned Single Judge and the part

against it is assailed by Western Coalfields Limited in LPA. LPA

is still pending. Again, we need not go into all these aspects.

11. Here, we are concerned only with the provisions of

Minister Concession Rules, 1960, and the nature of land held

by the petitioner. The Sub-Divisional Officer, in his reply sent

to the petitioners on 05.01.2005, has stated that if the

petitioner had any data requiring dead rent to be readjusted as

royalty, the petitioner should make submission regarding that

area on which the petitioner actually carried out mining

operations and then such area could be considered for

exclusion from levy of dead rent. He has candidly informed

that his office was not having any information about area under

Mining operations, therefore, if any information is furnished,

the petitioner would be discharged of the liability to that

extent.

12. We have to refer to this reply only to show that

demand has been raised without having appropriate data on

record. It is open to the Assessing Authority to exercise rights

conferred upon it by Maharashtra Land Revenue Code, 1966,

and to summon the petitioner to furnish necessary data. That

also has not been done.

13. In this situation, as the petitioner before this Court

is also an instrumentality of Union of India and the demand is

raised by the State Government, we find it appropriate to remit

the matter to the Sub-Divisional Officer for its fresh

consideration in accordance with law. The office of the Sub-

Divisional Officer shall give a fresh look to the levy as made

and shall attempt to collect fresh data and if it finds that

demand for dead rent or surface rent is sustainable, proceed to

assess the lands accordingly proportionately.

14. We direct the petitioner to appear before

Respondent No. 2 - Sub-Divisional Officer or his successor in

office on 18.06.2016 and to abide by further instructions of the

authority. The authority shall decide the objection of the

petitioner about exigibility and thereafter proceed further with

assessment. The respective Sub-Divisional Officers shall

attempt to complete this exercise within next six months.

15. Needless to mention that as the notice of demand

dated 27.12.2004 is found lacking in material particulars, it is

set aside.

16.

With these directions and observations, we partly

allow this writ petition and dispose it of. Rule made absolute

accordingly. However, in the facts and circumstances of the

case, there shall be no order as to costs.

               JUDGE                                                       JUDGE
                                                   ******





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