Karnataka High Court
M/S Rai Bahadur Seth Shreeram vs State Of Karnataka on 14 December, 2023
Bench: Chief Justice, Krishna S Dixit
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WP No. 26258 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 26258 OF 2023 (GM-MM_S)
BETWEEN:
M/S RAI BAHADUR SETH SHREERAM
NARASINGDAS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT,
HAVING REGISTERED OFFICE AT
D.NO. 1499/1, P.O BOX NO. 38,
KARIGANUR POST,
BELLARY DISTRICT
(NOW VIJAYANAGAR DISTRICT)
HOSPET-583 201.
Digitally signed REPRESENTED BY ITS DIRECTOR
by SHARADA SRI AJAY SARAF
VANI B
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA (BY SRI. LAKAMAPURMATH CHIDANANDAYYA.,ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY
SECRETARY TO GOVERNMENT,
COMMERCE & INDUSTRIES DEPT,
(MINES, MSME & SUGAR)
VIKASA SOUDHA,
BANGALORE-560 001.
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WP No. 26258 of 2023
2. THE DIRECTOR,
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVAN, R.C ROAD,
BANGALORE-560 001.
3. DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY,
HOSPET, BELLARY DISTRICT,
NOW VIJAYANAGAR DIST-560 040.
...RESPONDENTS
(BY SRI.S S MAHENDRA.,PRINCIPAL GOVERNMENT ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO a)
CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN
ENACTING THE IMPUGNED RULES AT ANNEXURE-A
PERMITTING THE LEVY THE DIFFRENCE OF ROYALTY CHARGES
AT THE PROCESSING PLANT IN PLACE OF MINE HEAD AT THE
TIME OF ISSUING THE MINERAL DISPATCH PERMITS FOR
TRANSPORTING THE BENEFICIATED ORE FROM THE PLANT OF
THE PETITIONER TO THE ULTIMATE CONSUMER AND B) ISSUE
AN ORDER, DIRECTION OR WRIT IN THE NATURE OF
DECLARATION DECLARING CLAUSE (b) OF SUB RULE-10 OF
RULE-4 OF THE KARNATAKA PREVENTION OF ILLEGAL MINING
AND STORAGE IF MINERALS RULES, 2011 PRODUCED AT
ANNEXURE-A IS UNCONSTITUTIONAL AND VOID IN LAW AND
ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
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WP No. 26258 of 2023
ORDER
1. Petitioner, a Company incorporated under the
erstwhile Companies Act, 1956 now re-enacted in 2013, is
knocking at the doors of Writ Court for assailing the
constitutionality of Clause (b) Sub-Rule (10) of Rule 4 of
the Karnataka (Prevention of Illegal Mining and Storage of
Minerals) Rules, 2011 on the ground of legislative
incompetence in the light of Section 23-C of the Mines &
Minerals (Development & Regulation) Act, 1957.
2. Learned counsel for the Petitioner submits that
a Co-ordinate Bench of this Court in W.P.No.19773/2018
(GM-MM-S) between M/S. MSPL LTD vs STATE OF
KARNATAKA disposed off on 21.04.2023 has quashed the
impugned provision of the Rule and therefore the relief
granted to the litigant therein needs to be extended to the
Petitioner on the Rule of Parity. He draws our attention to
the Legal Notice dated 03.06.2023 seeking parity in
treatment. In the said Notice, a demand is made to the
official Respondents to "stop collecting the difference of
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royalty charges at the plant level in compliance of law laid
down by the Division Bench...". Learned Principal
Government Advocate on request having accepted notice
for the Respondents unsuccessfully tried to resist the
Petition.
3. Having heard the learned counsel for the parties
and having perused the Petition papers, we are inclined to
grant relief to the Petitioner for the following reasons:
a) The subject Rule has been struck down by a Co-
ordinate Bench of this Court in M/S. MSPL LTD., supra.
The operative portion of the Judgement reads as under:
"The Writ Petitions are allowed in part. The
impugned Rule 4(10)(b) of the Karnataka
(Prevention of Illegal Mining, Transportation
and Storage of Minerals) Rules, 2011 is
unconstitutional. The same is declared as ultra
vires and we strike down the said rule.
We clarify with abundant caution that our
striking down of the impugned Rule in the
present judgment will not, in any manner,
effect the royalty which was paid earlier."
A great Jurist of bygone era, Thomas M Cooley in his A
TREATISE ON THE CONSTITUTIONAL LIMITATIONS, 8th
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Edition, VOL.I, Page 382, succinctly states the effect of
Court declaring a statutory provision as being
unconstitutional:
"Where a Statute is adjudged to be
unconstitutional, it is as if it had never been.
Rights cannot be built up under it: contracts
which depend upon it for their consideration
are void; it constitutes a protection to no one
who has acted under it and no one can be
punished for having refused obedience to it
before the decision was made. 'And what is
true of an act void in toto is true also as to any
part of an act which is found to be
unconstitutional and which consequently has to
be regarded as having never at any time been
possessed of any legal force..."
b) The quashment of impugned Rule by the
Constitutional Court ordinarily operates as a judgement in
rem. In a traditional view as emerging from the survey of
Rulings rendered under Section 41 of the Indian Evidence
Act, 1872, there are only four jurisdictions wherein
judgements operate in rem viz., (i) probate jurisdiction (ii)
admiralty jurisdiction (iii) matrimonial jurisdiction & (iv)
insolvency jurisdiction, say the sages of law like John
Woodroffe & Amir Ali in their LAW OF EVIDENCE, 21st
Edition LexisNexis page 1807. Although the term
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"judgement in rem" is not employed in the 1872 Act, the
concept has been lucidly explained by Sir Barnes Peacock
in KANHYA LALL vs RADHA CHURN, (1867) 7 WR
338.
c) Under the English Law, a judgement in rem is
broadly understood as an adjudication pronounced (as its
very name denotes), upon the status of some particular
subject-matter by a Court of competent jurisdiction for
that purpose, and this pronouncement operates not only
as res judicata i.e., binding inter parte but operates qua
the world at large. This idea is founded as a matter of
public policy for the peace of society as observed in
ANJUMAN ISLAMIA vs LATAFAT ALI, AIR 1950
ALLAHABAD 109. To the above four species, another
class of judgements rendered in constitutional jurisdiction
needs to be recognized & added, as of necessity. When a
Constitutional Court quashes a legislation or a delegated
legislation, the operation of such quashment transcends
the parties to the lis and operates as against all others,
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who were not parties eo nomine or persons claiming under
them. Therefore, Petitioner is entitled to the relief that has
been granted to the litigant in the cognate case i.e., M/S.
MSPL LTD, supra subject to the same
limitation/reservation, in the absence of demonstrably
derogative factors.
In the above circumstances, this Writ Petition
succeeds. The Respondents are directed to extend to the
Petitioner, the relief as granted to the litigant in M/S.
MSPL LTD supra, with the same limitation/reservation as
has been stated therein.
Costs made easy.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Snb,Bsv
