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TMI Blog1992 (2) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Karnataka High Court in Writ Appeals. The respondents-contractors entered into contracts with the Government to execute work as per the schedule of the contract provided in the form. They have to excavate the minor minerals either from the Government quarry or from private quarry and use them for the execution of the work. It is one of the requirements in the contract under Clause 35 of the Schedule that they are liable to pay royalty on the material so removed from Government quarry for the execution of the work. The Government have demanded payment of the royalty. Calling in question of the entitlement of the Government under Rule 19 of the Karnataka Minor Minerals Concessions Rules 1969 for short 'the Rules' the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Rules provides the rates of royalty as under; Rate of Royalty-Royalty shall be leviable on minor minerals quarried from the leased area at the rates specified in the Schedule. After the expiry of a period of four years from the commencement of these rules the Government may, by Notification in the Official Gazette, amend the schedule so as to enhance the rate at which royalty shall be payable in respect of any minor mineral, provided that the rates in respect of any minor mineral shall not be enhanced before the expiry of a period of four years from the date with effect from which the rate in respect of that minor mineral may have been last altered. Provided that the Government may, by notification in the Official Gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon vis-a-vis by Rule 19 of the Rules. In case the contractor used the extracted materials supplied to the contractor for execution of the work of the Government and if the Rules permit for grant of refund on a certificate obtained from a competent authority or Executive Engineer or an Officer authorised in that behalf, the Contractor would become eligible to apply for the grant of refund of the royalty so paid. However, under the contract he has independent right to use in the execution of the work the minor minerals obtained either from the Government quarry or from private quarry. If he uses minor minerals obtained from private quarry, he pays for its value to the owner. Repeatedly we asked the counsel whether the contractors are on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied. A right to carry on mining operations in the land, on surface or sub soil is to extract the specified quantity or the minerals found therein; to remove and appropriate that mineral. Section 9 of the Mines and Minerals (Regulation and Development) Act, 1957 affords the guidance in this behalf. It says that the holder of a mining lease or agent, etc. is entitled to remove or consume the mineral. It would mean destruction of the estate leases out and appropriation thereof on payment of consideration i.e. royalty. Therefore, it is a right to enjoy immovable property within the meaning of Section 105 more so when, as in the instant case, it is coupled with a right to be in occupation or entry into possession for a specified period. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence called a mining lease, is not in reality a lease at all in the sense in which one speaks of an agricultural lease and that such a contract, properly considered, is really a sale of a portion of the land at the price payable by installments, that is, by way of rent or royalty, spread over a number of years. 5. This Court in Tarkeshawar Sio Thakur v. Bar Dass Dey and Co. [1979]3SCR18 was to consider the question whether the mining lease is a lease within the meaning of Section 105 of the Transfer of Property Act. Considering the terms and conditions of the lease this Court concluded that a mining lease may not meticulously and strictly satisfy in all the cases if all the characteristics of a lease as defined in the Transfer of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy the same in execution of the contract, they became liable to pay royalty. Their liability to pay royalty arose from the contract. The question whether royalty is a part of the cast component is not the ground raised in the High Court not argued. We are not concerned therefore, with this question in these appeals. The learned single Judge of the High Court proceeded on the footing that the rules provided the mode and mechanism to enter into mining lease and since the mining leases were not executed in terms there of they are not leases under the rules. Therefore, he found that the liability to pay the royalty did not arise. The Division Bench proceeded on the ground that the lease does not attract Section 105 of the Transfer of Property A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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