1. This is a petition under Articles 226 and 227 of the Constitution of India for Writs of Certiorari and Mandamus seeking to quash the order of the Collector and Mining Officer, dated 3-6-1972 (Petitioner's Annexure-F) and the order, dated 23-6-1972 (Petitioner's Annexure-G) making a demand from the petitioner for Rs. 16,722.00 on the premises that the limestone quarried by the petitioner was for its use as minor mineral, though the petitioner had paid a royalty for quarried limestone as minor mineral at the rate of RS. 2-00 per ton. The royalty to be 'paid for limestone as a major mineral would be Rs. 1-25 per ton.
2. On 10-11-1965 the petitioner was granted a quarrying lease for ten years. In the application filed there was no mention of the fact whether the limestone was intended to be quarried for being used in kiln for building purposes. But the only description given was that it was intended for burning. On that basis the petitioner was granted a lease.
3. The said lease was the subject-matter of a writ petition, namely, Misc. Petn. No. 3 of 19G8. A Division Bench of this Court by order, dated 2-9-1970, dismissed the writ petition subject to certain observations. Thereafter the lease was made the subject-matter of a writ petition, namely. Misc. Petition No. 323 of 1968 (Petitioner's Annexure-B). The Division Bench deciding that case by order, dated 14-12-1970, allowed the said writ petition. It may be relevant to reproduce the observations of the Division Bench to 'the following effect;
'There is nothing to indicate what quantity of limestone was removed _ from the quarry area for purposes consistent with its being a minor mineral. No presumption can be raised since the lease itself was not for such a purpose. Hence it will have to be found in respect of material removed from the quarry whether it had been removed for a purpose which would make it a minor mineral and unless that is established a charge at the higher rate cannot be made. There is nothing to indicate that there was any such investigation by the Collector or by the Mining Officer. We consequently quash the demand. But the Collector and the Mining Officer will be at liberty to investigate into the matter and if they are able to ascertain as to what quantity had been removed as a minor mineral, they may again estimate the royalty on that material at the scheduled rate.'
4. On those premises the petition was allowed. As a result of the Division Bench order, the Mining Officer was required to ascertain whether any quantity of limestone had been removed for a purpose consistent with its being used as minor mineral.
5. It is further pertinent to note that the petitioner had paid royalty at the rate of Rs. 2.00 per ton on the basis that the limestone was being used for a purpose consistent with its being used as minor mineral. In this connection it is also pertinent to note that the Mining Inspector has furnished a schedule (Petitioner's Annexure-D), which showed that the petitioner had paid Rs. 36,951.25 paise in excess of the royalty that would be due from him for the limestone removed as a major mineral. However, by orders impugned (Petitioner's Annexures-F and G), the procedure that the Mining Officer was directed to follow vide order, dated 14-12-1970, in Misc. Petition No. 328 of 1968, was actually reversed. The reasoning of the Mining Officer in the order, dated 23-6-1972 (Petitioner's Annexure-G) is that the accounts maintained by the petitioner as also the persons who had purchased the limestone from the petitioner had kept a combined account of all sales, which did not disclose that the limestone had been sold for a purpose consistent with its being used as a' major mineral, For that reason the Mining Officer concluded that the inference should be that the sale of limestone by the petitioner to other persons, was for a purpose consistent with its being used as a minor mineral. With due respect to the Mining Officer, we may observe that this is absolutely a reverse process and he has acted contrary to the direction given by a Division Bench of this Court in Misc. Petition No. 328 of 1968. We have already reproduced the observations of the Division Bench earlier. Therefore, in order to make a claim for royalty on the premises of the limestone being used as a minor mineral, it was necessary for the Mining Officer to find out if the purpose was consistent with the limestone being sold as a minor mineral. If the Mining Officer was unable to ascertain that, the only result would be that the petitioner's liability would be for royalty as a major mineral and not as a minor mineral. Thus, in the absence of any material to establish the fact that any portion of the limestone had been sold for the purpose consistent with its being used as a minor mineral, the petitioner's liability on that basis would not at all arise. We are clearly of the opinion that the Mining Officer was in error in reversing the process and in drawing a conclusion contrary to the specific directions given by a Division Bench of this Court in Misc. Petition No. 328 of 1968. As such, the order of the Mining Officer is clearly vitiated and is rendered illegal, as it is in contravention of a decision of the Division Bench of this Court given in a writ petition.
6. Moreover, we may invite attention of the Mining Officer to the definition of the phrase 'minor mineral' as given by Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957, which is as follows:
'Section 3.-- In this Act, unless the context otherwise requires,-- (e).-- 'minor minerals' 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.'
7. Accordingly a Notification, D/-20-9-2001 has been issued by the Government by which limestone was to be treated as a minor mineral only when used in kilns for manufacture of lime used as a building material. Therefore, the limestone would be a minor mineral according to the terms of the said Notification and in all other cases, it will be deemed to be a major mineral. From this point of view also it was necessary for the Mining Officer to find out whether the limestone had been used for a purpose consistent with its being a minor mineral and if he was unable to ascertain that, the petitioner's liability would be for royalty as a major mineral only. In this connection we might advert to the observations of a Division Bench of this Court in Ramnaresh Swamy v. State Govt. of Madhya Pradesh, 1972 MPLJ 272 = (AIR 1972 Madh Pra 86), wherein the Division Bench made the following observations.
'The purpose obviously of getting' this column filled by an applicant is 'that he should specify which minor mineral he wants to quarry. Unless he specifies the minor mineral there, it will not be possible to determine whether the application was an application for quarrying a minor mineral. Limestone can be used for several purposes and it is n minor mineral only when, according to the notification issued by the Central Government, it is 'used in klins for manufacture of lime used as a building material'. If limestone is quarried for any other purpose, it will be a major mineral and will not be a minor mineral. If, therefore, in column (6) merely limestone is mentioned and it is not mentioned that it, will be used in kilns for manufacture of lime used as a building material, it would automatically mean that the application is for mining, limestone as a major mineral. There is thus incongruity in the application. Although the form used by an applicant is for a minor mineral, but the mineral he wants to extract is a major mineral, in such a case the application would clearly be untenable.'
8. Thus in view of the observations cf the Division Bench with which we are in respectful agreement, it must be held that unless it in established that the linestone has been quarried for a purpose consistent with its being a minor mineral, in all other events it will be taken for granted that it has been quarried for a purpose consistent with its being a major mineral. Therefore, applying all these tests we are dearly of opinion that the Mining Officer was in error in making a fresh demand for Rs. 16,722.00 on the premises that as the petitioner had failed to establish that he had used the materials for a purpose consistent with its being a major mineral, he was liable for royalty as a minor mineral.
9. As a result of the discussion aforesaid we quash the two orders of the Mining Officer, dated 3-6-1972 (Petitioner's Annexure-F) and the order, dated 23-6-1972 (Petitioner's Annexure-G) and as such, there cannot be any demanr.', for royalty as a minor mineral. Consequently, this petitioner succeeds and is accordingly allowed. However, under the circumstances we direct that there shall be no order as to costs, which shall be borne as incurred, especially in view of the fact that the petitioner himself had committed a lapse in not properly mentioning the purpose for which be wanted the quarrying lease. The outstanding amount of the security deposit shall be refunded to the petitioner. The Bank guarantee furnished in pursuance of the stay order passed by this Court be released in favour of the petitioner.