M/S.Utkal Highways, & Another vs The Union Of India & 3 Ors
2017 Latest Caselaw 3354 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR

                          WRIT PETITION NO. 2558 OF 2000

 1]         M/s. Utkal Highways, a partnership firm
            duly registered under the Partnership Act
            having its office at 26, Byramji Road,
            Nagpur 440 013 through its Power of
            Attorney Shri Korapatti Raghuram Krishna
            S/o Shri K. Vithalrao.

 2]         Shri K.A.Pillai & Company, a partnership
            firm duly established under the provisions
            of Partnership Act having its office at 
            Plot No. 22, Sector 16-A, Vashi, Navi
            Mumbai 400 703                                         PETITIONERS

                               ...VERSUS...

 1.         The Union of India, Ministry of
            Mines and Minerals, Department of
            Mines, New Delhi.

 2.         The Collector, Amravati.

 3.         The Chief Engineer (C) Central,
            Central Railway, CAO (Construction)'s
            Office, 6th Floor, New Administrative
            Building, D.N.Road, CST,
            Mumbai 400 001

 4.         Deputy Chief Engineer (Construction),
            Central Railways, Ajani, Nagpur.......          RESPONDENTS

                                           AND

                          WRIT PETITION NO. 2671 OF 2000

 1]         M/s. Shri Radha Krishna Engicons,
            a partnership firm through its
            partner Rajesh Kumar Agrawal,
            having its registered office at 



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          Budharaja, Sambalpur (Orissa), 
          presently at 98, Shivaji Nagar,
          Nagpur.

 2]       Vinay Agrawal, Proprietor, having
          its registered office at 13, Crooked Lane,
          Calcutta, presently at 301, Mehadia
          Bhavan, Wardha Road, Nagpur                                   PETITIONERS

                                 ...VERSUS...

 1.       The Union of India, Ministry of
          Mines and Minerals, Department of
          Mines, New Delhi.

 2.       The Collector, Amravati.

 3.       The Chief Engineer (C) Central,
          Central Railway, CAO (Construction)'s
          Office, 6th Floor, New Administrative
          Building, D.N.Road, CST,
          Mumbai 400 001

 4.      Deputy Chief Engineer (Construction),
         Central Railways, Ajani, Nagpur......                       RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri A.A.Naik, counsel for Petitioners in W.P.No.2558 of 2000 and none
 for the petitioners in W.P.No.2671 of 2000.
 Shri   U.M.Aurangabadkar,   counsel   for   Respondent   no.   1   in   both
 petitions
 Shri S.M.Ukey, AGP for respondent No.2 in both petitions
 None for respondent Nos. 3 and 4 in both petitions.
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, AND
                                        Mrs. SWAPNA JOSHI, JJ.

th DATE : 20 JUNE, 2017 .

ORAL JUDGMENT (P.C.)

1] The petitioners claimed that they have excavated

ordinary earth which by itself is not declared to be a "mineral"

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under the provisions of the Mines and Minerals (Development

and Regulation) Act, 1957 ("the said Act" for short). The

royalty was charged on the petitioners on the excavated

ordinary earth on the basis of notification dated 03.02.2000

issued by the Central Government in exercise of its power

conferred by the provisions of Section 3(e) of the said Act.

The petitions claim the reliefs as under;

(A) Strike down the Notification dated 3.2.2000 issued by the respondent No.1 at Annexure "C" as ultra vires the power of Respondent No.1 and being unconstitutional and violative of provisions of Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957;

(B) Declare that the action on behalf of respondent Nos. 3 and 4 in deducting royalty from the petitioners on ordinary earth is without any authority of law and restrain the respondent Nos. 2 to 4 from withholding or deducting royalty from the running bills of the petitioners;

(C) Declare that there is no authority in law empowering the respondent No.2 to 4 in withholding or deducting royalty on ordinary earth and in the alternative declare that the respondent Nos. 2 to 4 are not authorised in law in recovering or deducting royalty on ordinary earth with respect to agreements/contracts which are entered into prior to 3.2.2000;

(D) During the pendency and final disposal of this petition, direct the respondents not to withhold or deduct royalty amount on ordinary earth as per notification dated 3.2.2000;

(E) Ad interim reliefs in terms of prayer clause (D);

(F) Costs of this petition be saddled on the respondents; and

(G) Grant such other reliefs and issue such other suitable directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case"

2] On 27.07.2000, this Court had passed an order

as under;

"Rule.

Ad interim order in terms of prayer clause 'D' excluding the bracketed portion with the following addition.

"in case the earth has been extracted before 3.2.2000"

Rule on interim relief returnable after 8 weeks"

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                           On   09.10.2000,   the   aforesaid   order   was

          modified, as under;

"Heard the learned counsel for the parties.

2. In order to clarify and see that our interim orders are not mis- construed, we make it clear that in case the petitioners have removed 'Murum' which is a minor mineral, they will be liable to pay royalty irrespective of the notification dated 3/2/2000 which is under challenge. In case of 'ordinary earth', the respondent/State would be entitled to collect royalty in terms of the notification which classify ordinary earth as minor mineral with effect from 3/2/2000 which shall be subject to decision of this petition. In view of this clarification, nothing survives in the application. Same is disposed of"

3] The challenge to the notification dated

03.02.2000 at Annexure-C is on the ground of competency of

the Central Government to issue such notification declaring

the "ordinary earth" as "minor mineral". Shri Naik, the

learned counsel appearing for the petitioners in W.P.No.2558

of 2000, fairly concedes that the issue is covered by the

decision of the Apex Court in the case of Som Datta

Builders Limited vrs. Union of India and others,

reported in (2010) 1 SCC 311. The very same notification

was under challenge in this decision of the Apex Court and it

has been held that though a substance has to be a mineral

before it can be notified as a "minor mineral" pursuant to the

power under Section 3(e) of the said Act, the Central

Government was competent to issue the notification

declaring ordinary earth is comprehended within the meaning

of "any other mineral" and paras 25 and 26 of the said

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decision, being relevant, are reproduced below;

"25. In the context of Section 3(e), what we have discussed above, we hold, as it must be, that "ordinary earth" is comprehended within the meaning of the word "any other mineral". We adopt the reasoning given by the three-Judge Bench in Banarsi Dass Chadha that if the expression "minor mineral" as defined in Section 3(e) of the Act includes "ordinary clay" and "ordinary sand", there is no reason why "ordinary earth" should not be comprehended within the meaning of the word "any other mineral".

26. Having held that "ordinary earth" is comprehended within the meaning of the word "any other mineral" in Section 3(e) of the 1957 Act, the question that now arises is whether the exercise of power by the Central Government under Section 3(e) of the 1957 Act in declaring the use of "ordinary earth" for filling or levelling purposes in construction of embankments, roads, railways and buildings as "minor minerals" is justified"

In view of the aforesaid decision of the Apex Court, the

controversy no longer remains res-integra and it is

concluded.

4] Shri Naik, however, has invited our attention to

the definition of "minerals" under section 2(jj) of the Mines

Act, 1952, which is reproduced below.

"2(jj) "minerals" means all substances which can be obtained from the earth by mining, digging, drilling, dredging, hydraulicing, quarrying or by any other operation and includes mineral oils (which in tern include natural gas and petroleum)"

He submits that the decision of the Apex Court does not take

into consideration the aforesaid definition of the "minerals"

given under the Mines Act, 1952, though it proceeds on the

footing that the dictionary meaning of the word "minerals" has

never been held to be determinative and conclusive and the

word "mining" has not been circumscribed by a precise

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scientific definition, it is not a definite term. According to Shri

Naik, this definition clearly excludes "ordinary earth" as

mineral. He submits that unless "ordinary earth" is defined as

mineral, the Central Government does not become

competent to issue notification under Section 3(e) of the said

Act.

5] We put a specific question to Shri Naik, as to

whether the definition of "minerals" under Section 2(jj) of the

Mines Act, 1952, which does not include an "ordinary earth"

can be imported for interpreting the provisions of Section 3(e)

of the Mines and Minerals (Development and Regulation)

Act, 1957. We also invited his attention to the definition

under section 3(i) of the Mines and Minerals (Development

and Regulation) Act, 1957, which states that the expressions,

"mine" and "owner", have the meanings assigned to them in

the Mines Act, 1952. Shri Naik, the learned counsel, is

unable to bring to our notice any decision of the Apex Court

to hold that such a definition of "minerals" under the Mines

Act can be imported for construing the power of the Central

Government to issue notification under Section 3(e) of the

said Act. We are of the view that had such been the intention

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of the legislature, it would have included the word "mineral" in

the definition under Section 3(i) of the said Act. We,

therefore, do not find any substance in the contention raised

by the learned counsel Shri Naik.

7] So far as the other reliefs claimed in the petition

are concerned regarding retrospective recovery of royalty

and whether it was a "murum' which was excavated or an

"ordinary earth", we leave this matter to be agitated before

the competent authority under the provisions of the

Maharashtra Land Revenue Code, as there are the disputed

questions of fact and can conveniently be dealt with in

statutory appeal. The petitioners shall be at liberty to file an

appeal before the appropriate authority to agitate all such

points. The appellate authority shall consider the time spent

in prosecuting these petitions while considering the question

of condonation of delay caused in filing an appeal. The writ

petitions are dismissed.

                                JUDGE                           JUDGE


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