B. Sudershan Reddy, J.
1. The petitioner herein invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the legality and correctness of the order dated 12-9-2000 passed by the first respondent-Union of India, Department of Mines represented by its Secretary.
2. The first respondent (hereinafter referred to as 'Union of India') allowed the revision petition filed by the 4th respondent herein under Section 30 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the Act') and Rule 55 of the Mineral Concession Rules, 1960 (for short 'the Rules') and accordingly set aside the order passed by the second respondent (hereinafter referred to as 'State Government') dated 29-7-1999 rejecting the renewal of mining lease application of the petitioner on the ground that the consent of the land owner was lacking at the time of renewal of mining lease. The impugned order passed by the Union of India is assailed on various grounds.
3. That in order to consider the question as to whether the impugned order suffers from any error apparent on the face of the record requiring interference in exercise of our Certiorari jurisdiction, a few relevant facts leading to filing of this writ petition may have to be noticed:
4. The petitioner herein claims to be the true and absolute owner of an extent of Ac.46-48 cents of dry land covered by Survey Nos. 68/3, 68/5, 68/6 and 6/3 of Kandali village, Gudur Mandal, Nellore District. One M.R. Reddy, resident of Gudur approached the petitioner for his consent in order to enable him to obtain mining lease for Mica in favour of his wife Smt. Kowsalyamma. The petitioner has given his consent for Mica mining for a period of 20 years. The Government of Andhra Pradesh vide G.O.Ms. No. 986, Industries and Commerce (M-II) Department, dated 23-9-1974 granted lease in favour of said Smt. Kowsalyamma in an extent of Ac.95-38 cents, which includes the land admeasuring Ac.50-00 belonging to the Government for a period of 20 years and the lease deed was executed on 6-11-1974 which was valid up to 5-11-1994. During the subsistence of the said lease deed, the said Smt. Kowsalyamma has obtained another lease for Kyanite, Feslper, Vermiculite and quartz minerals under a separate lease deed executed on 9-2-1981 co-terminus with the earlier lease deed dated 6-11-1974. Thereafter, the said Smt. Kowsalyamma has applied for consent of the Government for transfer of the lease granted vide G.O.Ms.No.986, dated 23-9-1974 and lease deed was executed on 6-11-1974 in favour of the 4th respondent herein. The transfer of lease was accordingly executed on 31st December, 1983 in favour of the 4th respondent herein.
5. Thereafter, the 4th respondent filed an application on 29th October, 1993 for renewal of mining lease granted in G.O.Ms. No. 986, dated 23-9-1974. The Deputy Director of Mines and Geology has recommended for rejection of the said application on the ground that the 4th respondent was not working the mine and not paying the dues to the Department and on some other grounds. It is not necessary to notice the further details in this regard.
6. The petitioner herein filed an objection petition before the State Government requesting not to grant renewal in favour of the 4th respondent herein as requested by it. The State Government issued show cause notice dated 22-6-1998 to the 4th respondent herein duly informing it that the petitioner who is admittedly the owner of Ac.46-76 cents of the land has not given his consent and the remaining extent of Ac.50-00 belonging to the Government is the cattle breeding land and accordingly required the 4th respondent to explain as to why his application for renewal should not be rejected.
7. The 4th respondent has given its explanation inter alia stating that the mine was not kept idle and that during the year 1995-96, 6420 metric tons and during 1996-97, 1700 metric tons of minerals were dispatched. That the land admeasuring Ac.46-76 cents owned by the petitioner was sold to the 4th respondent herein under an agreement of sale dated 19-3-1983 and by virtue of the provisions of Section 53-A of the Transfer of Property Act, their possession is protected and they are entitled to be declared as the owners of the land. It was further pleaded that as per Rule 22 (3)(i) (h) of the Rules, further consent at the time of renewal is not required, and that the remaining extent of Ac.50-00 of land belonging to the Government is cattle poramboke and not a breeding ground.
8. The State Government in view of the controversy issued a notice of hearing to both the writ petitioner and the 4th respondent herein in order to consider the request of the 4th respondent for renewal of mining lease in its favour. The petitioner objected to the grant of renewal on various grounds including on the ground that the application dated 29th October, 1993 submitted in Form-J is a defective one and is not in accordance with the rules and form.
9. The State Government after hearing all the parties has rejected the renewal application by its order dated 29th July, 1999 on the ground that the report of the Assistant Director of Mines and Geology, Nellore revealed that the mine was not working and permit was issued only up to 2-4-1997 after payment of advance royalty. 'Moreover, there is no documentary evidence produced by way of sale deed/power of attorney to show that the land in question was transferred from Sri V.V.R.K. Yachendra to M/s. Galaxy Mica Enterprises as contended by the Company'.
10. That aggrieved by the said order passed by the State Government, the 4th respondent has filed a revision before the Union of India challenging the order of the State Government on various grounds. The Union of India framed two points for its consideration:
i) Is fresh consent required at the time of renewal of mining lease?
ii) Is consent required from the land owner at the time of transfer of the mining lease?
11. Both the points were held in favour of the 4th respondent and accordingly the revision petition was allowed. The Union of India mainly held that under the scheme of the Act and the Rules, an express provision has been made under third proviso to Rule 22(3)(i)(h) to the effect that at the time of renewal of mining lease fresh consent of the landholder will not be required. The Union of India took the view that the consent of the landholder is required only at the time of starting of the mining operations. There is no such requirement in law to obtain consent of the landholder in the case of renewal where consent has already been granted during the grant of lease.
12. Sri E. Manohar, learned Senior Counsel appearing on behalf of the petitioner, contended that the Union of India gravely erred in failing to consider the fact that the consent given by the petitioner was admittedly for a specified period of 20 years and as such the third proviso to Rule 22(3)(i)(h) of the Rules is not attracted. The third proviso to Rule 22 (3)(i)(h) presupposes unqualified and continued consent. It was further submitted that Clause (X-A)(a) of Form-J specifically requires the applicant to state as to whether the applicant continues to have surface rights over the area of the land for which the applicant requires renewal of mining lease. Sub-clause (b) stipulates that if he does not have the surface rights, he has to state that he has obtained the consent of the owner and occupier for undertaking mining operations and if he has obtained the consent he has to file the consent of the owner and occupier obtained in writing. The 4th respondent in the instant case failed to comply with this mandatory requirement since in the renewal application dated 29th October, 1993 the 4th respondent has not stated anything against the above two clauses and it simply stated 'does not arise'. The learned Senior Counsel submitted that Rule 22 of the Rules cannot be read in isolation. The whole of the Rule is required to be read along with Form-J renewal application. The provisions are to be harmoniously construed and if so construed the consent of the landholder as required in Form-J even for renewal of mining lease is a must. The learned Senior Counsel also contended that the Union of India committed an incurable infirmity in disposing of the revision only on one ground without considering the merits in the renewal application filed by the 4th respondent. Even if the consent of the land owners was not required still the question remained as to whether the 4th respondent was entitled for the renewal of mining lease.
13. Sri S.R. Ashok, learned Senior Counsel appearing on behalf of the 4th respondent, submitted that no consent of the landholder is necessary in view of clear language in the third proviso to Rule 22 (3) (i) (h). The Rule admits only one interpretation that no consent of the landholder is necessary at the time of renewal of mining lease. The requirement to furnish information as against column (X-A) (a) is directory in its nature and omission to furnish such information is not fatal. The learned Senior Counsel further contended that the order passed by the State Government dated 29-7-1999 is vague and indefinite in its terms since it failed to give any particular reason or ground for rejecting renewal application of the 4th respondent. Precisely, it is for that reason, the Union of India having decided the main question as to the requirement of consent of the landholder and having set aside the order of the State Government remitted the matter for fresh consideration by the State Government of renewal of mining lease application of the 4th respondent on merits and in accordance with law. The order of the Union of India does not suffer from any error apparent on the face of the record requiring any interference of this Court.
14. Before we proceed to consider the rival submissions and the main question that falls for consideration we make it clear that it is totally unnecessary to go into the disputes relating to the title of the land in question between the petitioner and the 4th respondent. The parties are at loggerheads and more than one civil proceeding is stated to be pending in various Courts, each claiming some relief as against the other. Both the learned Senior Counsel very fairly submitted that it is totally unnecessary for this Court in this proceeding to go into the questions of title and possession with regard to the private land in respect of which once the consent of the writ petitioner has been admittedly obtained at the time of grant of mining lease. Therefore, we refrain ourselves from expressing any opinion on the questions relating to title and possession of the land admeasuring Ac.46-76 cents.
15. The crucial question that falls for our consideration is as to whether the consent of the landholder would be required in the case of renewal of mining lease where consent has already been obtained at the time of grant of lease?
16. Section 24-A of the Act provides for rights and liabilities of a holder of prospecting licence or mining lease. It provides that on the issue of a mining lease under the Act and the rules made thereunder, it shall be lawful for the holder of such permit, licence or lease, his agents or his servants or workmen to enter the lands over which such permit, lease or licence had been granted at all times during its currency and carry out all such mining operations as may be prescribed:
17. Provided that no person shall enter into any building or upon an enclosed court or garden attached to a dwelling house (except with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.
18. Sub-section (2) of Section 24-A of the Act provides that the holder of a mining lease shall be liable to pay compensation in such manner as may be prescribed to the occupier of the surface of the land granted under such lease for any loss or damage which is likely to arise or has arisen from or in consequence of the mining operations.
19. Section 24-A of the Act has been inserted by Central Act 37 of 1986 and has come into operation with effect from 22-8-1986.
20. The Central Government in exercise of the powers conferred by Section 13 of the Act made 'The Mineral Concession Rules, 1960. Chapter IV of the Rules provides for the procedure in the matter of grant of mining leases in respect of land in which the minerals vest in the Government. Rule 22 provides that an application for grant of a mining lease in respect of land in which the minerals vest in the government shall be made to the State government in Form-I through such officer or authority as the State Government may specify in that behalf. That every application for the grant or renewal of a mining lease shall be accompanied by, amongst the other things, the consent of the owner for starting mining operations. Since the whole of the controversy centers around the interpretation of that requirement it would be apposite to have a look at the relevant Rule.
21. Rule 22 (3) (i) - Every application for the grant or renewal of a mining lease shall be accompanied by-
(a) - (g) ........
(h) a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained the consent of the owner for starting mining operations:
Provided that no such statement shall be necessary where the land is owned by the Government:
Provided further that the consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed but before entry into the said area:
Provided also that no further consent would be required in the case of renewal where consent has already been obtained during grant of the lease.
22. The above Rule has been substituted by GSR 129 (E) dated 20-2-1991. A harmonious reading of the Rule 22 (3) (i) (h) and the provisos thereof makes it clear that every application for the grant of a mining lease shall be accompanied by a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained the consent of the owner for starting mining operations. Third proviso to Rule 22 (3) (i) (h) provides that no further consent would be required in the case of renewal where consent has already been obtained during grant of the lease. But for the said proviso, consent of the land owner for starting mining operations is a mandatory requirement either for the grant or renewal of a mining lease, since Rule 22 (3) (i) couched in mandatory form states that every application for grant of renewal of a mining lease shall be accompanied by a statement in writing that the applicant has obtained the consent of the owner for starting mining operations. But the third proviso clearly makes an exception that no such consent would be required in the case of renewal where the consent has already been obtained at the time of grant of the lease.
23. It is the settled law and needs no restatement in our hands that the Forms prescribed by the Rules form an integral part of the Rules. Form-I is the prescribed application form for grant of mining lease and the same is required to be read along with Rule 22 (1) of the Rules.
24. Clause (X) (a) and (b) of Form-I requires the applicant to state whether the applicant has surface rights over the area for which he is making an application for grant of a mining lease and, if not, has he obtained the consent of the owner, and the occupier of the land for undertaking mining operation. If so, the consent of the owner and occupier of the land be obtained in writing and be filed.
25. Thus, it is clear that though Section 24-A of the Act which provides for the rights and liabilities of a holder of a mining lease, does not require the prior consent of the owner for undertaking mining operations. Rule 22(3) (i) (h) read with Form-I provides that such consent is required to be obtained, which, in our considered opinion, is a mandatory requirement. The Rules have been framed in exercise of the power conferred upon the Central Government under Section 13 of the Act, which provides and enables the Central Government to make rules for regulating the grant of reconnaissance permits, prospecting licences and mining leases in respect of minerals and for purposes connected therewith, providing for the terms on which, and the conditions subject to which, such permit or lease may be granted or renewed. The Rules are to be read so as to be in conformity with the provisions of the Act.
26. Rule 24-A of the Rules deals with renewal of mining lease and it provides that an application for the renewal of a mining lease shall be made to the State Government in Form-J, at least twelve months before the date on which the lease is due to expire, through such officer or authority as the State Government may specify in this behalf. Thus, Form-J is required to be read along with Rule 24-A of the Rules. Forms 'I' and 'J' have been substituted by GSR 86 (E) dated 10-2-1987. Clause (X-A) (a) and (b) of Form-J requires the applicant to state whether he continues to have surface rights over the area of the land for which he requires renewal of the mining lease. If not, has he obtained the consent of the owner and occupier for undertaking mining operations; If so, the consent of the owner and occupier of the land obtained in writing be filed. If these clauses are to be read in isolation ignoring the third proviso to Rule 22 (3) (i) (h) the requirement of obtaining the consent of the owner or occupier for undertaking mining operations is a must. Rule 22 (3) (i) (h) together with all its provisos has been substituted with effect from 20-2-1991 whereas Clause (X-A) (a) and (b) has been inserted by GSR 86 (E) dated 10-2-1987. For whatever reason, the Rule making authority appears to have not made the necessary changes or amendments to the said clauses in Form-J so as to be in conformity with the third proviso to Rule 22 (3) (i) (h), which in clear terms provides that no further consent would be required in the case of renewal where consent has already been obtained 'during grant of the lease'. That expression 'during grant of the lease' is somewhat inartistic and perhaps in order to avoid absurdity the same may have to be read as 'at the time of grant of the lease' instead of 'during grant of the lease'.
27. In Subbarama Reddy and others v. Union of India, ILR (1974) AP 909 a Division Bench of this Court speaking through Gopal Rao Ekbote, J (as he then was) held that the grant of lease by the Government in favour of the appellants therein cannot be said to be illegal or void as prior consent of the owners of surface rights was not obtained. The difficulties in operating the mines without the prior consent of the pattadar are not insurmountable. The Government's right to grant lease is, however, unqualified and unaffected. No such condition of obtaining the prior consent of the land owner can be attached to the grant of a mining lease by the Government. The law was declared in view of the fact that at the relevant time there was no such requirement of obtaining the prior consent of the owner of the land before starting mining operations. The said judgment may not be of any assistance in resolving the issues that arise for consideration in this writ petition.
28. The observation made by a Division Bench of this Court in Pallava Granites Industries India (P) Ltd., v. Govt. of A.P., : 1996(4)ALT706 that insistence on consent of pattedar as a condition precedent for grant of lease with a view to facilitating smooth working of the mines cannot be construed as impermissible in law is also of no assistance, since the decision had arisen in the matter of grant of a mining lease in respect of minor mineral. The Court observed that it is uncontroversial that there are no specific provisions either requiring the consent of the pattedar or dispensing with such a consent for execution of the lease deed in favour of the lessee, like the requirement in the case of major minerals under the second proviso to clause (h) of sub-rule (3) of Rule 22 of the Mineral Concession Rules, 1960. But the State Government with a view to facilitating smooth working of the mines has been insisting upon the requirement of the consent of the pattedars and such requirement cannot be construed as impermissible in law.
29. The said judgment of this Court received the approval of the Supreme Court in Pallava Granites Industrial India (P) Ltd., v. Govt. of A.P., : [1997]2SCR1173 The broad observations made by the Supreme Court that 'the right to excavate the mines from the land of private owner is based on the agreement; unless the lessor gives his consent, no lessee has a right to enter upon his land and carry on mining operations' are required to be understood in the background of the facts leading to such observations. We have already noticed that the said case had not arisen under 1960 Rules. The case did not involve interpretation of any Rules with which we are concerned for the present in this writ petition. Therefore, the said judgment is not an authority for the proposition that even in respect of renewal of mining lease under 1960 Rules; the consent of the land owner is necessary.
30. Sri Bhargavi Granites Industries Pvt. Ltd., v. Govt. of India, : 2002(2)ALD418 is again a case arising under the A.P. Minor Mineral Concession Rules, 1966 in which it is held that no licence can be given without the consent of the pattedar.
31. That none of these decisions render any assistance in considering the question raised that whether the consent of the land owner, once obtained at the time of grant of mining lease under 1960 Rules, is required to be obtained again at the time of renewal of mining lease.
32. In State of T.N. v. M.P.P. Kavery Chetty, the constitutional validity of Rule 19-A of the Tamil Nadu Mineral Concession Rules, 1950 came up for consideration before the Supreme Court. The said rule was challenged on various grounds. It was inter alia contended that under the first proviso to Rule 19-A of the said Rules, the consent of the owner of the land was not made a condition and it was bad in law on that account alone. The Supreme Court repelling the said contention observed:
'The submission does not take note of Section 24-A of the said Act. Thereunder the holder of a mining lease under the said Act or rules made under it is empowered to enter the land on which the lease has been granted and carry out mining operations. He is obliged to compensate the landowner for any loss or damage that his operations may cause. Consent of the occupier is required only when the holder of the lease desires entry into any building or enclosed court or garden.'
33. The broad observations made by the Supreme Court in Pallava Granites Industrial India (P) Ltd., (3 supra) perhaps are required to be understood in the context of the decision of a three Judge Bench of the Supreme Court in M.P.P. Kavery Chetty (5 supra), which was not referred to in Pallava Granites Industrial India (P) Ltd.
34. We have referred to these decisions since they were sited before us though they have no direct bearing on the issue, which we are required to resolve.
35. That we have already noticed that Rule 22 (3) (i) (h) together with its three provisos has been substituted by GSR 129 (E) dated 20-2-1991 whereas Clause (X-A) (a) and (b) of Form-J was inserted by GSR 86 (E) dated 10-2-1987. The amendments made to the Rule is much subsequent to the amendment made to the clause incorporated in Form-J. It is, no doubt, well settled that the schedules and Forms appended to the statute form part of the statute. In the similar manner, schedules and Forms appended to the Rules made by the rule making authority in exercise of its rule making power form part of the rules. Such schedules and Forms are normally added towards the end of the statute or rules, as the case may be, and their use is made to avoid encumbering the rules with matters of excessive detail. It is equally well settled that in case of any collision or conflict between the body of the Rules and the Forms, the former prevails.
36. In M/s. Aphali Pharmaceuticals Ltd., v. State of Maharashtra, AIR 1989 SC 2227, the Supreme Court observed:
'A Schedule in an Act of Parliament is a mere question of drafting. It is the legislative intent that is material. An Explanation to the Schedule amounts to an Explanation in the Act itself. As we read in Halsbury's Laws of England, Third Edition, Vol.36, para 551 : 'To simplify the presentation of statutes, it is the practice for their subject matter to be divided, where appropriate, between sections and schedules, the former setting out matters of principle, and introducing the latter, and the latter containing all matters of detail. This is purely a matter of arrangement, and a schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced.' The schedule may be used in construing provisions in the body of the Act. It is as much an act of Legislature as the Act itself and it must be read together with the Act for all purposes of construction. Expressions in the Schedule cannot control or prevail against the express enactment and in case of any inconsistency between the schedule and the enactment the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act. Lord Sterndale, in Inland Revenue Commissioner v. Gittus, (1920) 1 KB 563, said: 'It seems to me there are two principles of rules of interpretation which ought to be applied to the combination of Act and Schedule. If the Act says that the Schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the Schedule as though the Schedule were operating for the purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the Schedule and the definition of the purpose of the Schedule contained in the Act.'
38. The above observation was not disapproved in appeal (1921) 2 AC 81. However, the basic principle is that in case of a conflict between the body of the Act and the Schedule, the former prevails. In the instant case we do not find any such conflict.'(Emphasis is added)
39. Third proviso to Rule 22 (3) (i) (h) clearly says that no further consent would be required in the case of renewal where consent has already been obtained 'during grant of the lease'. The expression 'during grant of the lease' means 'at the time of grant of the lease'. A proper meaning has to be assigned to this particular proviso which carves out an exception to Rule 22 (3) (i) (h) which mandates that every application for grant or renewal of a mining lease shall be accompanied by a statement in writing that the applicant has obtained the surface rights over the area or has obtained the consent of the owner for starting mining operations. Strictly speaking even that consent of the landowner is not for the purpose of granting mining lease, but requirement of obtaining such consent is for starting mining operations. This position is clearly amplified by the second proviso, which says that the consent of the owner for starting mining operations in the area may be furnished after execution of the lease deed but before entry into the said area. The requirement is that such consent must be made available before undertaking the mining operations.
40. In Kush Sahgal v. M.C. Mitter, : [2000]2SCR648 the Supreme Court observed:
'...... the normal function of a PROVISO is to except something out of the enactment or to qualify something enacted therein which but for the PROVISO would be within the purview of the enactment......Since the natural presumption is that but for the PROVISO, the enacting part of the section would have included the subject-matter of the PROVISO, the enacting part has to be given such a construction which would make the exceptions carved out by the PROVISO necessary and a construction which would make the exceptions unnecessary and redundant should be avoided (See: Justice G.P. Singh's 'Principles of Statutory Interpretation' Seventh Edition 1999, p-163). This principle has been deduced from the decision of the Privy Council in Government of the Province of Bombay v. Hormusji Manekji, AIR 1947 PC 200 as also the decision of this Court in Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, : [1965]1SCR737 .'
41. We are clear in our mind that the third proviso to Rule 22 (3)(i)(h) specifically carves out an exception that in case of renewal no further consent would be required where consent has already been obtained 'during grant of the lease'. It does not depend upon the period or number of years for which the consent has already been obtained. The expression 'where consent has already been obtained' is simple and plain, which means that once the consent has already been obtained at the time of grant of the lease no further consent is required to be obtained in the case of renewal.
42. What remains to be considered is the effect of Clause (X-A) (a) and (b) of the Form-J, which we have already noticed. Form-J which remained un-amended after the substitution of Rule 22 (3) (i) (h) together with its provisos must be deemed to be modified since the operation of the Rules did not depend upon the contents of the Form. The rule together with its provisos was complete and effective. The omission to prescribe the new Form so as to be in tune with the Rules did not render the Rules ineffective.
43. For the aforesaid reasons, we hold that in case of renewal, where consent has already been obtained at the time of grant of the lease, no further consent would be required to be obtained. The view taken by the Union of India in disposing of the revision, which is incidentally the rule making authority, does not suffer from any legal infirmity or error apparent on the face of the record requiring our interference in exercise of Certiorari jurisdiction.
44. The second contention urged by the learned Senior Counsel need not detain us any longer since it is always open to the State Government to take relevant aspects into consideration either to grant renewal or not to grant in the circumstances of the case. The impugned order itself speaks that the parties have concentrated on the core issue relating to the requirement of the consent of the land owner even for the grant of renewal of mining lease and the revisional authority rightly adverted to the said question and accordingly disposed of the revision. There was no other alternative for the revisional authority except to dispose of the revision in the manner in which it did since the order of the State Government is couched in vague and indefinite terms. The order is not clear as to what factor weighed with the State Government in dismissing the application filed for renewal of the mining lease.
45. It shall now be open to the State Government to consider the application for renewal of mining lease on its on own merits uninfluenced by any of the observations made in this order as well as the observations, if any, made in the order passed by the Union of India.
46. The writ petition fails and shall accordingly stand dismissed. There shall be no order as to costs.