TMI Blog2001 (2) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... n) Rules, 1963 (hereinafter referred to as the Rules) and dispose of the aforesaid application filed by the respondent no. 4 on 4.7.1995. The short facts giving rise to this appeal are that respondent no. 4 applied for grant of mining lease in plot no. 1, Baghwa Mahoba measuring 10 acres and on 17.8.1977 the same was granted in his favour under Chapter II of the Rules for a period of 10 years w.e.f. September 17, 1977. On the expiry of the said period, respondent no. 4 once again applied for re-grant of the lease which was granted this time for a period of five years, which period expired on 1.5.1992. In the year 1992 a declaration was made under rule 23 of the Rules which is in Chapter IV declaring the area of Bhagwa Mahoba for grant of lease by way of auction or by tender or by auction-cum-tender and thereby the provisions contained in Chapters II, III and VI of the Rules were made inapplicable to the said area. In view of the aforesaid declaration, mining lease was granted by auction in favour of respondent no. 4 on 22.5.1992 in relation to the aforesaid area of 10 acres for mining of minerals, viz., Khanda, Gitty and Boulder for a period of three years. On 30.3.1995 the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease in his favour. Both the writ applications were heard and dismissed by the High Court on 24.4.1996 holding that the notice dated 31.3.1995 was invalid, being contrary to rule 72 of the Rules as the period of seven days was not specified therein and, therefore, there was no illegality in cancellation of the said notice and issuance of fresh one on 30.5.1995. Challenging the said order respondent no. 4 filed two Special Leave Petitions in which leave was granted and the Civil Appeals were disposed of by a common judgment rendered on 9.4.1997 whereby the appeals were dismissed, but it was observed that the High Court was not justified in declaring that the notice dated 31.3.1995 was invalid as in the opinion of this Court the said notice was in accordance with the provisions of rule 72 of the Rules, but cancellation of the same and issuance of fresh notice on 30-5-1995 was justified as the lease was sanctioned on 6.5.1995, i.e., before the expiry of the period of seven days. This Court while disposing of the said appeals granted liberty to issue a fresh notice for grant of lease in accordance with law. Though according to the observation of this Court referred to above the Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government and that dated 4.10.1997 passed by the District Magistrate were quashed and the District Magistrate was directed to take a decision upon the application dated 4.7.1995 filed by the respondent no. 4 in accordance with law as the lease was sanctioned on 24.9.1997 by the State Government in favour of the appellant without following the procedure prescribed under rule 72 of the Rules. Challenging the aforesaid decision of the High Court, the appellant filed Special Leave Petition before this Court in which leave to appeal having been granted, the present appeal is placed before us. Mr. Govind Das and Mr. G.L. Sanghi, learned Senior Counsel, appearing on behalf of the appellant, in support of the appeal submitted that rule 72 of the Rules had no application for sanctioning lease in favour of the appellant by the State Government under its order dated 24.9.1997 as earlier lease in relation to the area in question was granted under Chapter IV and not under Chapter II inasmuch as under rule 72, as amended by the 21st amendment, only that area becomes available for re-grant which was held under a mining lease under Chapter II or was reserved under Section 17A of the Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - In Gerard v. Worth of Paris Ltd.(k), (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimants debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided without argument, without reference to the crucial words of the rule, and without any citation of authority, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. In State of U. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government has declared from time to time or may declare, by notification in the official Gazette, to be a minor mineral, under clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act No. 67 of 1957). Chapter III provides for payment of royalty and dead rent. Under rule 21 of the Rules, which is under Chapter III, a holder of mining lease is required to pay royalty in respect of any mineral removed by him from the leased area at the rates for the time being specified in the First Schedule appended to the Rules. On 25.11.1993 an amendment was made whereby granite sized dimensional stone was incorporated in item (5) of the Schedule as (v). Conditions of mining leases have been enumerated in Chapter V and Chapter VI prescribes procedure for grant of mining permit. In the original Rules there were 71 rules. Thereafter on 27.8.1994 by 20th amendment rules 72 to 79 were inserted in Chapter VIII of the Rules out of which rule 72 may be referred to which reads thus:- R.72.- Availability of area for regrant to be notified.- (1) If any area, which was held under a mining lease or reserved under section 17-A of the Act becomes available for regrant the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. Under the Rules, mining operation in respect of any minor mineral can be undertaken only in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules. Such a lease could be granted under Chapter II, which prescribes the procedure and rule 9 provides for a preferential right when two or more persons apply for a mining lease in respect of the same land. The mining lease could also be granted under Chapter IV by way of auction/tender/auction-cum-tender when State Government by special or general order declare that the area in question could be leased out by auction or by tender or by auction-cum-tender, as provided in rule 23. The procedure for grant of lease by auction is provided under rule 27. Rule 24 empowers the State Government to withdraw any area which had been declared under sub-rule (1) of rule 23 and once the area is withdrawn under rule 24, then the procedure prescribed in Chapter II for grant of mining lease becomes applicable. Thus the procedure provided under Chapter II of the Rules being the normal procedure, Chapter IV is an exception to the same. It may be useful to quote rules 23 and 24 hereunder which are under Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area was held under mining lease either under Chapter II or under Chapter IV, the procedure prescribed in rule 72 was applicable. By 21st amendment, rule 72 was substituted which prescribes the procedure of notifying the availability of the area through a notice, inviting for applications for grant of mining lease, specifying the date when the said area which was held under a mining lease under Chapter II or reserved under Section 17-A of the Act becomes available for re-grant on mining lease. Further amendment was made that the applications for grant of mining lease were required to be received within 7 working days from the date specified in the notice referred to in sub-rule (1) of rule 72. The language used in rule 72(1) on a literal meaning being given, would undoubtedly support the contention of Mr. Das and Mr. Sanghi, appearing for the appellant that this procedure would not apply when the area in question had been held under a lease not under Chapter II but under Chapter IV. But such an interpretation should be avoided inasmuch as the very purpose for which rule 72 has been engrafted in the Rules will totally get frustrated. The object of having such provision is transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise. But in a case when the area was held under auction/tender/auction-cum-tender under Chapter IV and the State Government withdraws the area from the said procedure, whereafter provisions of Chapter II, the normal procedure for granting lease becomes applicable as in the case in hand, then if Rule 72 is interpreted in the manner, as contended by the learned counsel for the appellant, then it would frustrate the purpose of transparency and open-ness engrafted in rule 72 and such an interpretation will be against the legislative intent. It is a cardinal principle of construction that the courts must adopt a construction which would suppress the mischief and advance the remedy. In other words, the court must adopt a purposive interpretation of the provisions under consideration. So construed, it is difficult for us to accept the contention of Mr. Das appearing for the appellant that rule 72 has no application to the case in hand merely because the area in question had been held by the previous lessee for some period under auction/tender basis under Chapter IV, particularly when on 30th of March, 1995 the District Magistrate withdrew the area held under auction/tender system to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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