D.K. Trivedi and Sons & Ors Vs. State of Gujarat & Ors [1986] INSC 27 (5 March 1986)
MADON, D.P. MADON, D.P. TULZAPURKAR, V.D.
CITATION: 1986 AIR 1323 1986 SCR (1) 479 1986 SCC Supl. 20 1986 SCALE (1)1133
CITATOR INFO:
F 1986 SC1620 (1) R 1988 SC1621 (2)
ACT:
Mines and Minerals (Regulation and Development) Act, 1957 (Act. No.67 of 1957), Section 15(1), Constitutionality of - Whether the State Government has the power to make rules under section 15 to enable them to charge dead rent and royalty during the subsistence of such leases - Validity of Notifications/circular issued by the Gujarat Government under section 15 amending the Gujarat Minor Mineral Rules, 1966 and dated 29.11.74, 29.10.75, 4.6.76, 26.3.79, 12.2.81 and 18.6.81 - Validity of Rule 21B of the Gujarat Minor Mineral Rules, 1966.
HEADNOTE:
The Writ Petitioners and appellants, were persons to whom the State of Gujarat had granted quarry leases and mining leases in respect of minor minerals such as black trap, lime stones, murrum, bentonite, rubble, marble, sandstone, quartzite, etc. In exercise of the powers conferred by section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the Government of Gujarat made the Gujarat Minor Mineral Rules, 1966. The said Rules came into force on April 1, 1966. All the leases in the matters before the Court were given in the form prescribed by the said Rules, Schedule I to the said Rules specified the rates at which royalty was payable and Schedule II specified the rates at which dead rent was payable. By the 1974 Notification the Government of Gujarat made the Gujarat Minor Mineral (Fourth Amendment) Rules, 1974 whereby Schedule I was substituted and Schedule II was amended with effect from December 1, 1974. Under the new Schedule I and the amended Schedule II the rates of royalty and dead rent in respect of certain minor minerals were enhanced. In view of several representations made to it, the Government of Gujarat decided not to implement the 1974 Notification and to refund the amount of royalty, if any, collected at the rates prescribed by the 1974 Notification.
By the 1975 Notification the Government of Gujarat made the Gujarat 480 Minor Mineral (Second Amendment) Rules, 1975, whereby Rule 21 of the said Rules and Schedule I were substituted with effect from November 1, 1975. By the said substituted Schedule I the rates of royalty in respect of several items were enhanced.
The Appellant in C.A. 706/81, Ambalal Manibhai Patel, being aggrieved by the said 1975 Notification, filed a Writ Petition in the Gujarat High Court (Sp.C.Ap. 66/78 ) challenging the enhancement in the rate of royalty to Rs.3 per metric tonne in respect of black trap and hard Murrum specified in Item 4 of the said substituted Schedule I. The Writ Petition having been dismissed, the appellant filed LPA No.61/78 which was heard along with several writ petitions raising the same questions. The main contention raised in those matters was that under the proviso to section 15(3) of the 1957 Act, the rate of royalty in respect of any minor mineral could not be enhanced by the State Government more than once during any period of four years and that the rate of royalty on black trap and hard murrum having been increased by the 1974 Notification, it could not be increased again in 1975. A subsidiary contention raised was that the State Government had no power to classify building stones into black trap and hard murrum because by doing so what the State Government had done in effect and substance was to declare black trap and hard murrum as minor minerals and that it was only the Central Government which possessed the power to declare any mineral not covered by the definition of the expression "minor minerals" in clause (e) of section 3 of the 1957 Act to be a minor mineral. Both these contentions were rejected by a Division Bench of the Gujarat High Court by its judgment dated 16/17 September 1980 holding that the 1974 Notification had not become operative and, therefore, in issuing the 1975 Notification the State Government had not violated the proviso to section 15(3), and that building stones having been already included in the definition of "minor minerals", there was no bar to the State Government classifying them into different varieties for the purpose of recovering royalty. Civil Appeal 706/81 is by Special Leave of the Court against the said judgment.
During the pendency of the said Court proceedings, the Government of Gujarat made the Gujarat Minor Mineral (Second Amendment) Rules, 1976, substituting Schedule II to the said 481 Rules, changing the rates of dead rent for specified Minor Minerals and reclassifying the said nomenclature as "for quarry leases for any minor mineral" and "for quarry Parwana for any minor mineral." Pursuant to a policy decision dated March 26, 1979 announced on the floors of the Legislature by the Minister for Mines, the Gujarat Government by the 1979 Notification made the Gujarat Minor Minerals (Amendment) Rules, 1979 with effect from April 1, 1979. By this amendment a new Rule 21B was inserted in the said Rules, Rule 22 was amended, Chapter IV of the said Rules which dealt with grant of quarrying permits in respect of lands in which minerals belonged to the Government was deleted, Form was amended, Forms I, J and K were deleted, and Schedules I and II were substituted. By the substituted Schedule I, the rate of royalty on all minor mineral was specified as ten paise per metric tonne. By the substituted Schedule II the rate of dead rent per hectare or part thereof in respect of quarry leases was enhanced to Rs.1,200 in certain cases, Rs.1,500 in some other cases, Rs.2,000 in one case and Rs.3,000 in the remaining cases. So far as quarry parwanas were concerned, the rate was specified as one-tenth of the rate for quarry leases per parwana.
Ambalal Manilal Patel again filed a writ petition, Sp.C.Ap.138 of 1978, in the Gujarat High Court challenging the enhancement in the rate of dead rent made by the 1976 Notification. The Writ Petition was dismissed leading to the filing of a Letters Patent Appeal. The said Letters Patent Appeal and 25 other writ petition challenging the 1979 Notification were allowed by the Division Bench. The Division Bench held that the conditions in a lease in respect of minor minerals relating to the financial liability of a lessee derived their authority from sub- section (3) of section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, while conditions, other than those relating to a lessee's financial liability, regulating the grant of a lease derived their authority from [Sub-section from] sub-section (1) of section 15, that the State Government had no power to enhance the rate of dead rent during the subsistence of a lease, and that Rule 21-B of the Gujarat Minor Mineral Rules, 1966 and 1979 Notification were ultra vires section 15 and sub-clause (g) of clause (1) of Article 19 of the Constitution. The Division 482 Bench accordingly issued a writ of mandamus against the State Government directing it to desist from enforcing the said Rule 21-B and the 1979 Notification. The Division Bench also made the same declaration in respect of the 1976 Notification and issued the same mandamus in respect thereof. The said judgment of the Division Bench is reported as Smt. Sonbai Pethalji v. State of Gujrat & Anr., reported in XXI (2) (1980) 2 Gujarat L.R. 530. The State of Gujarat accepted the said judgment and did not come in appeal to this Court. Certain lessees of mining and quarry leases, however, approached this Court by way of Appeals and Writ Petitions challenging the correctness of the judgment in Smt. Sonbai's case.
In view of the said judgment, the Government of Gujarat issued a circular addressed to all Collectors, District Development Officers and the Director, Geology and Mining, Ahmedabad, being Circular No. M.C.R.2190 (166) CHH dated February 12, 1981, stating that in view of the aforesaid judgment of the Division Bench the position prior thereto would prevail and that Chapter IV of the said Rules which was deleted by the 1976 Notification would stand revived and would be applied. The Government thereafter made the Gujarat Minor Minerals (Amendment) Rules, 1981, by issuing the 1981 Notification which came into force on June 20, 1981. By the 1981 Notification Rule 21-B was deleted, Rule 22 was amended, Chapter IV and certain Forms were inserted, Schedule I to the said Rules was substituted and Schedule II thereto deleted. Several lessees of mining and quarry leases filed writ petitions in the Gujarat High Court challenging the validity of the 1981 Notification and the said Circular.
These writ petitions were rejected on the ground that as connected proceedings were pending in the Supreme Court, it was open to the petitioners to move this Court if they so desired. Accordingly, the said petitioners as also others filed writ petitions in this Court challenging the validity of the 1981 Notification and the said Circular as also in some cases Appeals against the order rejecting the writ petitions.
Dismissing CA. Nos. 1525-26 of 1982, WP Nos.7103-7128 of 1981 and WP Nos. 4208-17 of 1983, allowing in part only CA.Nos. 706 and 1324/81, WP. Nos. 6419-22/82 and WP Nos.
4912-4924 and 5167-5182 of 1983 and allowing CA Nos. 1489 and 1675/81 WP Nos.1656, 2108, 4097 and 7697 of 1981, WP Nos. 762, 874-942, 483 946-968, 1616-17, 4455-73, 4479-84, 5589-5605, 5895-5969, 5971 to 6005, 6309, 6463-79 and 10114 to 10112 of 1982 and 3393 to 4003, 8813-8820 and 9539 to 9549 of 1983, the Court, ^
HELD : 1.1 Sub-section (1) of section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 is constitutional and valid and the rule-making power conferred thereunder upon the State Government does not amount to excessive delegation of legislative power to the executive.
[523 G]
1.2 To take into account legislative history and practice when considering the validity of a statutory provision or while interpreting a legislative entry is "well-established" principle of construction of statutes.
[528 B-C] State of Bombay v. Narothamdas Jethabai and Anr. [1951] S.C.R. 51; State of Madras v. Gaunnan Dunkerley & Co. (Madras) Ltd., [1959] S.C.R. 379 referred to.
1.3 The 1957 Act is made in exercise of the powers conferred by Entry 54 in the Union List which speaks both of regulation of mines and minerals development and Entry 23 in the State List is subject to Entry 54. The rule-making power conferred by section 15(1) was for regulating the grant of prospecting licences and mining leases and for purposes connected therewith prior to the Amendment Act of 1972 and thereafter is for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and for purposes connected therewith. The phraseology of section 15(1) is the same as that of section 13(1) which confers rule-making power upon the Central Government with this difference that by the Amendment Act of 1972 the expression "quarry leases, mining leases or other mineral concessions" has been substituted in section 15(1) for the words "prospecting licences and mining leases" while the expression "prospecting licences and mining leases" in section 13(1) remains unchanged. [524 B-C; 525 B-E] The word "minerals" wherever used in the 1957 act would include minor minerals unless minor minerals are expressly excluded or the context otherwise requires. Although under section 14, section 13 is one of the sections which does not apply to minor minerals, the language of section 13(1) is in 484 pari materia with the language of section 15(1). Each of these provisions confers the power to make rules for "regulating". Thus, the power to regulate by rules given by sections 13(1) and 15(1) is a power to control, govern and direct by rules the grant of prospecting licences and mining leases in respect of minerals other than minor minerals and for purposes connected therewith in the case of section 13(1) and the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and for purposes connected therewith in the case of section 15(1) and to subject such grant to restrictions and to adapt them to the circumstances of the case and the surroundings with reference to which such power is exercised. me power to regulate conferred by sections 13(1) and 15(1) is not only with respect to the grant of licences and leases mentioned in those sub-sections but is also with respect to "purposes connected therewith", that is, purposes connected with such grant. Entry 54 in the Union List uses the word "regulation". m e makers of the Constitution were not only aware of the legislative history of the topic of mines and minerals but were also aware how the Dominion Legislature had interpreted Entry 36 in the Federal Legislative List in enacting the 1948 Act. When the 1957 Act came to be enacted, Parliament knew that different State Governments had, in pursuance of the provisions of Rule 4 of the Mineral Concession Rules, 1949, made rules for regulating the grant of leases in respect of minor minerals and other matters connected therewith and for this reason it expressly provided in sub-section (2) of section 15 of the 1957 Act that the rules in force immediately before the commencement of that Act would continue in force until superseded by rules made under sub-section (1) of section 15. Regulating the grant of mining leases in respect of minor minerals and other connected matters was, therefore, not something which was done for the first time by the 1957 Act but followed a well-recognised and accepted legislative practice. In fact, even so far as minerals other than minor minerals were concerned, what Parliament did, as pointed out earlier, was to transfer to the 1957 Act certain provisions which had until then been dealt with under the rule-making power of the Central Government in order to restrict the scope of subordinate legislation. [526 D,E,H; 527 A-H; 528 A-B]
2.1 There are sufficient guidelines provided in the 1957 Art for the exercise of the rule-making Power of the State 485 Governments under section 15(1) of the 1957 Act. These guidelines are to be found in the object for which such power is conferred, namely, "for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith"; the meaning of the word "regulating; the scope of the phrase "for purposes connected therewith"; the illustrative matters set out in sub-section (2) of section 13; and the restrictions and other matters contained in sections 4 to 12 of the 1957 Act. [528 C-D; 530 G-H; 531 A-B]
2.2 It is well settled that where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the general power and do not in any way restrict the general power. [528 D-El King Emperor v. Sibnath Banerjee and Ors., (1944-45) 72 I.A. 241; Om Prakash and Ors. v. Union of India and Ors., [1970] 3 S.C.C. 942, 944-5; Shiv Kirpal Singh v. V.V. Giri [1971] 2 S.C.R. 197, 224-5 referred to.
2.3 The fact that provision similar to sub-section (2) of section 13, does not find a place in section 15 does not make any difference. What sub-section (2) of section 13 does it to give illustrations of the matters in respect of which the Central Government can make rules for "regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith". The opening clause of sub-section(2) of section 13, namely, "In particular, and without prejudice to the generality of the foregoing power", makes it clear that the topics set out in that sub-section are already included in the general power conferred by sub-section (1) but are being listed to particularize them and to focus attention on them. The particular matters in respect of which the Central Government can make rules under sub-section (2) of section 13 are, therefore, also matters with respect to which under sub-section (1) of section 15 the State Government can make rules for "regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith." When section 14 directs that "The provisions of sections 4 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in 486 respect of minor minerals", what is intended is that the matters contained in those sections, so far as they concern minor minerals, will not be controlled by the Central Government but by the concerned State Government by exercising its rule-making power as a delegate of the Central Government. Sections 4 to 12 form a group of sections under the heading "General restrictions on undertaking prospecting and mining operations". The exclusion of the application of these sections to minor minerals means that these restrictions will not apply to minor minerals but that it is left to the State Governments to prescribe such restrictions as they think fit by rules made under section 15(1). [529 D-H; 530 A-B] Sections 13, 14 and 1-5 have to be read together. In providing that section 13 will not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals what was done was to take away from the Central Government the power to make rules in respect of minor minerals and to confer that power by section 15(1) upon the State Governments. The ambit of the power under section 13 and under section 15 is, however, the same, the only difference being that in one case it is the Central Government which exercises the power in respect of minerals other than minor minerals while in the other case it is the State Governments which do so in respect of minor minerals.
Sub-section (2) of section 13 which is illustrative of the general power conferred by section 13(1) contains sufficient guidelines for the State Governments to follow in framing the rules under section 15(1), and in the same way, the State Governments have before them the restrictions and other matters provided for in sections 4 to 12 while framing their own rules under section 15(1). [530 C-G]
3.1 The power to make rules conferred by section 15(1) includes the power to make rules charging dead rent and royalty. [531 B-C] 3.2 Rent is an integral part of the concept of a lease.
It is the consideration moving from the lessee to the lessor for demise of the property to him. Section 105 of the Transfer of Property Act , 1982, contains the definitions of the terms "lease", "lessor", "lessee", "premium" and "rent".
Royalty connotes the payment made for the materials or minerals won from the land. [534 C-D] 487 H.R.S. Murthy v. Collector of Chittour and Anr., [1964] 6 S.C.R. 666, 673 referred to.
3.3 In a mining lease the consideration usually moving from the lessee to the lessor is the rent for the area leased (often called "surface rent"), dead rent and royalty.
Since a mining lease confers upon the lessee the right not merely to enjoy the property as under an ordinary lea e but also to extract minerals from the land and to appropriate them for his own use or benefit, in addition to the usual rent for the area demised, the lessee is required to pay a certain amount in respect of the minerals extracted proportionate to the quantity so extracted. Such payment is called "royalty". It may, however, be that the mine is not worked properly so as not to yield enough return to the lessor in the shape of royalty. In order to ensure for the lessor a regular income, whether the mine is worked or not, a fixed amount is provided to be paid to him by the lessee.
This is called "dead rent". [534 G-H; 535 A-B] "Dead rent" is calculated on the basis of the area leased while royalty is calculated on the quantity of minerals extracted or removed. m us, while dead rent is a fixed return to the lessor, royalty is a return which varies with the quantity of minerals extracted or removed. Since dead rent and royalty are both a return to the lessor in respect of the area leased, looked at from one point of view teat rent can be described as the minimum guaranteed amount of royalty payable to the lessor but calculated on the basis of the area leased ant not on the quantity of minerals extracted or removed. Stipulations providing for the lessee's liability to pay surface rent, dead rent and royalty to the lessor are the usual covenants to be found in a mining lease. [535 B-E] The grant of a mining lease would thus provide for the consideration for such grant in the shape of surface rent, teat rent and royalty. The power to make rules for regulating the grant of such leases would, therefore, include the power to fix the confederation parable br the lessee to the lessor in the shape of ordinary rent or surface rent, dead rent and royalty. If this were not so, it would lead to the absurd result that when the Government grants a mining lease, lt is granted gratis to a person who wants to extract minerals and profit from them. Rules for regulating the grant of mining 488 leases cannot be confined merely to rules providing for the form in which applications for such leases are to be made, the factors to be taken into account in granting or refusing such applications and other cognate matters. Such rules must necessarily include provisions with respect to the consideration for the grant. [535 E-H] The Legislature and the rule making authorities have also throughout understood the power to make rules in respect of mining leases and minerals as including the power to charge dead rent and royalty. Rule 41 of the Mineral Concession Rules, 1949, made by the Central Government in exercise of the powers conferred by section 5 of the 1948 Act prescribed the conditions which were to be included in every mining lease. The said Rule 41 provided for payment of royalty on minerals at the rate specified in the First Schedule to the said Rules in force on the date of the grant of the lease as also to pay royalty at such revised rates as may be notified from time to time. It also provided for payment of surface rent and further provided for payment of dead rent with a proviso that the lessee was liable to pay dead rent or royalty, whichever was higher in amount, but not both. Rules made by the State Governments in respect of minor minerals also provided for payment of these charges.
Under clause (1) of section 13(2) of the 1957 Act, the rules to be made by the Central Government can provide "for the fixing and the collection of dead rent, fines, fees or other charges and the collection of royalties". Although clause (i) of section 13(2) speaks of fixing and collection in the case of dead rent and only collection in the case of royalties, the reason is not that the power to fix rhyolites was not thought to be a comprehended in the general rule- making power of the Central Government under section 13(1).
The reason was that a separate provision in that behalf was made by section 9 with respect to mining leases granted both before the commencement of the 1957 Act as also after the commencement of the 1957 Act. Another reason for doing so was to specify the rates for royalties in respect of different minerals other than minor minerals in the Second Schedule to the 1957 Act in order to restrict the scope of subordinate legislation as pointed out in the Statement of Objects and Reasons to the Legislative Bill No. 83 of 1972. [536 B; E-G; 537 E-H; 538 A]
4.1 The sole repository of the power of the State Government to make rules and amendments thereto, including 489 amendments enhancing the rates of royalty and dead rent, is sub-section (1) of section 15. [564 D-E]
4.2 Sub-section (3) of section 15 does not confer upon the State Governments the power to make rules charging royalty or to enhance the rate of royalty so charged from time to time. [541 A-B]
4.3 A proper reading of subsection (3) of section 15 shows that it does not confer any power upon the State Governments to make rules with respect to royalty. Royalty is payable by the holder of a quarry lease or mining lease or other mineral concession granted under rules made under sub-section (1) of section 15. What sub-section (3) does is to make such holder liable to pay royalty in respect of minor minerals removed or consumed not only by him but also by his agent, managers, employee, contractor or sub-lessee.
It thus casts a vicarious liability upon such holder to pay royalty in respect of the acts of persons other than himself. The very I fact that under subsection (3) the liability of such holder is to pay royalty "at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals" shows that the prescribing of the rate of royalty in respect of minor minerals is to be done under the rule-making power of the State Governments which is to be found in sub-section (1) of section 15. Yet another purpose of enacting sub-section (3) is to be found in the proviso to that sub-section which prohibits the State Government from enhancing the rate of royalty in respect of any minor mineral for more than once during any period of four years. [539 D-G] Section 9A was inserted in the 1957 Act by the Amendment Act of 1972 but lt was not inserted with retrospective effect. It was, therefore, not there when section 15(1) was placed upon the statute book while enacting the 1957 Act. Section 9A was enacted with a two- fold purpose. It casts a liability upon the holder of a mining lease, whether granted before or after the commencement of the 1972 Act, that is, either before or after September 12, 1972, to pay to the State Government teat rent at the rates specified for the time being in the Third Schedule to the 1957 Act "notwithstanding anything contained in the instrument of lease or in any other law for the time being in force." The purpose of inserting section 9A in the 490 1957 Act, as stated in the Statement of Objects ant Reasons to Legislative Bill No.83 of 1972, was to make a "provision of a statutory basis for calculation of dead rent". Section 9A also provides that the liability of the lessee would be to pay either royalty or dead rent whichever is greater, thus embodying in the Act what was contained in the proviso to clause (c) of Rule 27 of the Minor Mineral Concession Rules, 1960. Section 9A was inserted also with a view to prohibit the Central Government from enhancing the rate of dead rent more than once during any period of four years. By the Amendment Act of 1972 section 9 was also a ended. While under the original sub-section (1) of section 9 the liability of the holder of a mining lease was only to pay royalty in respect of any mineral removed by him, after the amendment he is made liable to pay royalty in respect of any mineral "removed or consumed by him or by his agent, manager, employee, contractor of sub-lessee". By the Amendment Act of 1972 the power to the Central Government to amend by notification the Second Schedule which specifies the rate of royalty was also curtailed by inserting a proviso to section 9(3) in order to provide that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of four years. The amendments made by the Amendment Act of 1972 have, therefore, no relevance for ascertaining the scope of the rule-making power of the State Governments under section 15(1). [540 A-G] Smt. Sonbai Pethalji v. State of Gujrat & Anr., XXI (2) 1980 (2) Guj. L.R. 530 reversed.
M.V. Subba Rao v. State of Andhra Pradesh and Anr., A.I.R. 1978 AP 453 overruled.
Laddu Mal and Ors. v. The State of Bihar & Ors., A.I.R.
1965 Patna 491; Banku Bihari Saha v. State Government of Madhya Pradesh and Ors., A.I.R. 1969 M.P. 210; Dr. Shanti Saroop Sharma and Anr. v. State of Punjab & Ors., A.I.R.
1969 Punj. & Har. 79; M/s. Amar Singh Modi Lal v. State of Haryana and Ors., A.I.R. 1972 Punj. & Har. 356; M/s. Brimco Bricks, Bharatpur v. State of Rajasthan And Anr., A.I.R.
1972 Raj. 145 distinguished.
491 Sheo Varan Singh v. State of U.P., A.I.R. 1980 All. 92;
Bal Mukund Arora etc. v. State of Rajasthan and Ors., A.I.R.
1981 Raj. 95 approved.
5.1 The power to make rules under section 15(1) includes the power to amend the rules so made, including the power to amend the rules so as to enhance the rates of royalty and dead rent. [541 D-E]
5.2 Rules under section 15(1), though made by the State Governments, are rules made under a Central Act and the provisions of the General Clauses Act, 1897, apply to such rules. Under section 21 of the General Clauses Act, where by any Central Act, a power to make rules is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any rules so made. The power to amend the rules is therefore, comprehended within the power to make rules and as section 15(1) confers upon the State Governments the power to make rules providing for payment of dead rent and royalty, it also confers upon the State Governments the power to amend those rules so as to alter the rates of royalty and dead rent so prescribed, either by enhancing or reducing such rates. The source of the power to enhance the rate of royalty is not contained in sub-section (3) of section 15. The purpose of inserting the said sub-section in section 15 with retrospective effect was an entirely different one. [541 C-F]
5.3 A State Government is entitled to amend the rules under section 15(1) enhancing the rates of royalty and dead rent even as regards leases subsisting at the date of such amendment. [542 A-B]
5.4 Sub-section (3) of section 15 does not confer any power to amend the rules made under section 15(1), for the power to amend the rules is comprehended within the power to make the rules conferred by sub-section (1) of section 15.
The construction sought to be placed upon the word "grant" in section 15(1) is misplaced. While granting a lease it is open to the grantor to prescribe conditions which are to be observed during the period of the grant ant also to provide for the forefeiture of the lease on breach of any of those conditions. If the grant of a lease were not to prescribe such 492 conditions, the lesses would with impunity commit breaches of the conditions of the lease. Ordinary leases of immovable property at times provide for periodic increases of rent and there is no reason why such increases should not be made in a mining or quarry lease or other mineral concession granted under a regulatory statute intended for the benefit of the public and even less reason why such a statute should not confer power to make rules providing for increases in the rate of dead rent during the subsistence of the lease. In any event, the power to make rules under section 15(1) is also for purposes connected with the grant of mining and quarry leases and other mineral concessions and the expression "and for purposes connected therewith" read with the word "grant" would include the power to enhance the rate of test rent during the subsistence of the lease. [542 B-F]
5.5 A quarry lease, mining lease or other mineral concession in respect of a minor mineral does not stand on the same footing as an ordinary contract. These leases and concessions are granted by the State Governments pursuant to rules made under the statutory power conferred upon them by a regulatory Act. Minerals are part of the material resources which constitute a nation's natural wealth and if the nation is to advance industrially and if its economy is to be benefitted by the proper development and exploitation of these resources, them cannot be permitted to be frittered away and exhausted within a few years by indiscriminate exploitation without any regard to public and national interest. It was for achieving the object set out above that both the 1948 Act and the 1957 Act were enacted. The long title of the 1957 Act is "An Act to provide for the regulation of mines and the development of minerals under the control of the Union." The 1948 Act contained a preamble which stated "Whereas it is expedient in the public interest to provide for the regulation of mines and minerals and for the development of minerals to the extant hereinafter specified." The makers of the Constitution recognised the importance to the nation of the regulation of mines and mineral development and, therefore, enacted Entry 54 of the Union List and Entry 23 of the State List. In the exercise of the power conferred by Entry 54, Parliament has made a declaration in section 2 of the 1957 Act that "lt is expedient in the public interest that the Union should take under its control the regulation of mines and the 493 development of minerals to the extent hereinafter provided." The presumption is that an authority clothed with a statutory power will exercise such power reasonably, and if in the public interest and for the efficacious regulation of mines and quarries of minor minerals and the proper development of such minerals, a State Government as the delegate of the Union Government thinks fit to amend the rules to as to enhance the rate of dead rent, it cannot be said that it is prevented from doing so by the principles of the ordinary law of contracts. It may be that in certain cases by enhancing the rate of dead rent the holders of leases in respect of certain types of minor minerals may be adversely affected but private interest cannot be permitted to override public interest. Conservation of minerals and their proper exploitation result in securing the maximum benefit to the community and lt is open to the State Governments to enhance the rate of dead rent so as to ensure the proper conservation and development of minor minerals even though it may effect a lessee's liability under a subsisting lease. [543 B-H; 544 A-C] State of Tamil Nadu v. Hind Stone Etc., [1981] 2 S.C.R. 742 @ 751 relied on.
5.6 Where a statute confers discretionary powers upon the executive or an administrative authority, the validity or constitutionality of such power cannot be judged on the assumption that the executive or such authority will act in an arbitrary manner in the exercise of the discretion conferred upon lt. If the executive or the administrative authority acts in an arbitrary manner, its action would be bad in law and liable to be struck down by the courts but the possibility of abuse of power or arbitrary exercise of power cannot invalidate the statute conferring the power or the power which has been conferred by lt. [544 C-E]
6.1 A State Government is not required to give an opportunity of a hearing or of making a representation to the lessee who would be affected by any amendments of the rules before making such amendments. [544 G-H]
6.2 The enhancement in the rates of royalty and dead rent is made in the exercise of the statutory power to amend the rules framed under section 15(1). There is no such 494 principle of law that before such a statutory power is exercised, persons who may be affected thereby should be heard. Whether any opportunity is to be given to persons affected to make representations to the Government would depend upon the form in which the rule making power is conferred. It is for the legislative body which confers the rule making power to decide in what from such power should be conferred. In some acts it is provided that the draft of the rules proposed to be made as also any proposed amendment thereto should be published in the Official Gazette so that members of the public may have an opportunity of making such representations or raising such objections as they think fit. Some other Acts provide for rules to be laid before parliament or the Legislature for its approval and to be effective only after such approval is given or to continue in force with such modifications as Parliament or the Legislature may make, and if the approval is not given to cease to have any effect. It was, therefore, for Parliament to decide whether rules and notifications made by the State Governments under section 15(1) should be laid before Parliament or the Legislature of the state or not. It, however, thought it fit to do so with respect to minerals other than minor minerals since these minerals are of vital importance to the country's industry and economy, but did not think lt fit to do so in the case of minor minerals because it did not consider them to be of equal importance.
An amendment of the rules made under section 15(l), even though lt may have the effect of enhancing the rates of royalty or dead rent does not, therefore, become bad in law because no opportunity of being heard or making a representation is given to persons who would be prejudicially affected thereby. Section 15(l) does not contain any provision for giving any ouch opportunity and no such provision can be imported into that sub-section. [545 B-H]
7. A Quarry lease is a mining lease. Under clause (c) of section 3 "mining lease" inter alia means "a lease granted for the purpose of undertaking mining operations".
Under clause (d) of section 3, the expression "mining operations" means "any operations undertaken for the purpose of winning any mineral". Quarrying minerals is, therefore, a mining operation in as much as it consists of an operation undertaken for the purpose of winning particular classes of minerals. Clause (vi) of Rule 2 of the Gujarat Rules defines "quarry lease" as 495 meaning "a kind of mining lease in respect of a minor mineral granted under these rules." Quarry leases are, therefore, included in the term "mining leases". [546 C-F]
8.1 BY reason of the prohibition contained in the proviso to section 15(3), a State cannot enhance the rate of royalty in respect of any minor mineral more than once during any period of four years. A State Government is also not entitled to enhance the rate of dead rent more than once during any period of four years. Such a construction would be in consonance with practice, both past and present. The proviso to section 9(3) prohibits the Central Government from enhancing the rate of royalty in respect of any mineral other than a minor mineral more than once during any period of four years. The proviso to section 9A(2) also prohibits the Central Government from enhancing the dead rent in respect of any area more than once during any period of four years. [548 A-C]
8.2 During any period of four years, however, the State Government can enhance both dead rent and royalty, but only once. [548 F] Although in one sense dead rent may partake of the nature of royal q, there is a substantial difference between both. me bases for calculating royalty and dead rent are different and they are dealt with in different provisions of 1957 Act (namely, sections 9 and 9A) so far as minerals other than minor minerals are concerned and in the Rules made by the State Governments under section 15(1) so far as minor minerals are concerned. [548 E-F]
8.3 me period of four years for this purpose must be and can only be reckoned from the date of coming in to force of the rules and lt is open to a State Government to enhance the rate of royalty or dead rent at any time once during the period of four years from the coming into force of the rules and after each period of four years expires at any time during each succeeding period of four years. The Gujarat Rules came into force on April 1, 1966. Therefore, in the case of the Gujarat Rules the first period of four years would be 1.4.1966 to 31.3.1970, the second period would be 1.4.1970 to 31.3.1974, the third period would be 1.4.1974 to 31.3.1978, the fourth period would be 1.4.1978 to 31.3.1982, the fifth 496 period would be 1.4.1982 to 31.3.1986 and so on thereafter.
Thus, during any of these periods of four years both dead rent and royalty can be enhanced by the Government of Gujarat but only once during each such period. [549 A-D]
9. Building stones being minor minerals, the State Government has the power to classify then into different varieties and to charge a different rate of royalty in respect of each such variety. AS building stones have been defined as being minor minerals, the rule-making power with respect thereto vests in the State Governments under section 15(1). The 1957 Act does not enjoin State Governments to charge a uniform rate of royalty in respect of all varieties of building stones nor does it prohibit them from classifying building stones into different varieties and charging royal q thereon at separate rates. [557 A-C]
10.1 Notification No. GU-74/121(A)/MCR-2173(49)7268/CHH dated November 29, 1974, whereby the Government of Gujarat made the Gujarat Minor Mineral (Fourth Amendment) Rules, 1974, was validly issued and became operative with effect from December 1, 1974. The enhancement in the rates of royalty by the 1974 Notification was in the third period of four years reckoned from the date of coming into force of the Gujarat Rules, namely, from April 1, 1966. This third period was from April 1, 1974 to March 31, 1978. The rates of royalty having been enhanced once by the 1974 Notification, they could not be enhanced again during this period ant could only be enhanced during the subsequent period which commenced from April 1, 1978. [556 D-E]
10.2 Notification No. GU-75/117-MCR-2173(49)/6431/CHH dated October 29, 1975, whereby the Government of Gujarat made the Gujarat Minor Mineral (Second Amendment) Rules, 1975, to the extent that it enhanced the rates of royalty in respect of certain minor minerals was void as offending the prohibition contained in the proviso to section 15(3). [556 F-G]
10.3 The Explanation to Rule 21 provided that "For the purpose of this rule Schedule I means Schedule I as substituted by the Gujarat Minor Minerals (Third Amendment) Rules, 1966". Thus, the reference to Schedule I in Rule 21 was to Schedule I as substituted by the Notification dated 497 November 25, 1966. That Schedule was, however, again substituted by the 1974 Notification. The effect of such substitution was to repeal the 1966 Schedule I and do substitute it by a new Schedule I. Under section 8(1) of the General Clauses Act, 1897, Where the said Act or any Central Act or Regulation made after the commencement of the said Act, repeals and re-enacts, with or without notification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed are, unless a different intention appears, to be construed as references to the provision so re-enacted.
Though section 8(1) of the General Clauses Act does not in express terms refer to rules made under an Act, the same principle of construction would, apply in the case of rules made under an Act. Thus, after the coming into force of the 1974 Notification, the Explanation to Rule 21 must be read as "For the purpose of this rule Schedule I means Schedule I as substituted by the Gujarat Minor Mineral (Fourth Amendment) Rules, 1974" and references to Schedule I in Rule 21 must be construed as references to Schedule I as so substituted and not as references to Schedule I as substituted by the Gujarat Minor Minerals (Third Amendment) Rules, 1966. [554 H; 555 A-E] Rule 21 was not substituted for the purpose of conferring upon the State Government the power to enhance the rates of royalty specified in Schedule I. It was substituted for a wholly different purpose, namely, to bring the said Rule in conformity with sub-section (3) Which was inserted with retrospective effect in section 15 by the Amendment Act of 1972. Its object was to make the holder of a mining lease or any other mineral concession liable for payment of royalty not only in respect of minor minerals removed or consumed by him but also by his manager, employee, contractor or sub-lessee. Rule 21 did not have any relevance or bearing on the scope or exercise of that power.
In fact, sub-clause (a) of clause (i) of Rule 22 and clause (3) of Part V of the Schedule to Form (namely, the From of Quarrying Lease) appended to the Gujarat Rules expressly provided a condition that the lessee is to pay to the Government royalty at the rates for the time being specified in and in force under Schedule I to the Gujarat Rules.
Further, clause 12 of Part IX of the Schedule to From 'D' stipulates that the quarrying 498 lease is to be 'subject to the Gujarat Minor Mineral Rules, 1966 as amended from time to time." [555 F-H; 556 A-D]
10.4 Notification No. GU-76/39/MCR-2175(68)4675-CHH dated April 6, 1976, whereby the Government of Gujarat made the Gujarat Minor Mineral (Second Amendment) Rules, 1976, was void as it enhanced the rates of dead rent for the second time during the same period of four years in as much as this amendment falls within the third period of four years commencing from 1.4.74 to 31.3.78 during which by the 1974 amendment the rates of dead rent had already been enhanced with effect from 1.12.74. [557 D-F]
10.5 Notification No. GU-79/118/MCR-2178(127)-167 dated March 26, 1979, Whereby the Government of Gujarat made the Gujarat Minor Minerals (Amendment) Rules, 1979, was valid and was not ultra vires either section 15 or Article 19(1)(g) of the Constitution. The enhancement in the rates of dead rent made by the 1979 Notification does not amount to any unreasonable restrictions on the right of the holders of the quarry leases to carry on their trade or business.
The rates of dead rent specified cannot be looked at in isolation, but in con junction with the drastic reduction ate in the rates of royalty and so read there is nothing unreasonable in them. [557 F-G; 558 A] Smt. Sonabai Pathalji v. State of Gujarat and Anr., XX (2) 1980 (2) Guj. L.R. 530 reversed.
The enhancement in the rates of dead rent made by the 1979 Notification was during the fourth period of four years which commenced on April 1, 1978 ant ended on March 31, 1982. The 1979 Notification, therefore did not violate the bar against enhancing the rates of dead rent more than once during any period of four years also. 559 B-C
10.6 The rates of royalty and dead rent specified by the Notification dated November 29, 1974, namely, the Gujarat Minor Mineral (Fourth Amendment) Rules, 1974, continued to be operative and in force until the coming into force of the Notification dated March 26, 1979, on April 1, 1979. [560 A-Bl 499
10.7 The directions contained in the Circular No. MCR 2180(166) CHH dated February 12, 1981 issued by the Government of Gujarat were invalid and inoperative because the 1979 Notification as also Rule 22B were valid and operative and the State Government could not by a circular letter charge and collect royalty at rates different from the rate specified in the 1979 Notification. [561 G-H; 562 A-B]
10.8 Notification No.GU-81/75/MCR 2181/(168)-4536-CHH dated June 18, 1981, whereby the Government of Gujarat made the Gujarat Minor Mineral (Amendment) Rule, 1981, is valid and constitutional and does not offend Article 19(1) (g) of the Constitution. [562 E-F]
10.9 It is true that by the 1981 Notification the rates of royalty have been enhanced manifold. During the particular period of four years, namely, the fourth period commencing on April 1, 1978, and ending on March 31, 1982, the rates of royalty had not been enhanced but drastically reduced by the 1979 Notification while the rates of dead rent had been considerably enhanced by the 1979 Notification. The enhancement in the rates of royalty made by the 1981 Notification was, therefore, the first enhancement made during the fourth period of four years. If the rates of royalty so enhanced are looked at alone, it would appear that they are unreasonable, but taking into account the fact that dead rent is not payable after the cooing into force of the 1981 Notification, the position is completely altered and it cannot be said that enhancement in the rates of royalty is unreasonable. Though by the 1981 Notification the rates of royalty in respect of certain minor minerals have been enhanced, by no stretch of imagination can such enhancement be said to be excessive or unreasonable when compared with the rates of royalty specified in the 1974 Notification. [562 Y-G; 563 A-D]
ORIGINAL JURISDICTION : Writ Petitions Nos: 1656, 2108, 4097, 7103, 7104-7128, 7697 of 1981, 762, 874-942, 946-968, 1616-17, 4455-4473, 4479-4484, 5589-5605, 5895-5969, 5971- 6005, 6309, 6419-6422, 6463-6479, 10104-10122 of 1982, 3993- 4003, 4208-4217, 4912-4924, 5167-5182, 8813-8820, 9539-9549 of 1983.
500 WITH Civil Appeals Nos: 706, 1489, 1675, 1934 of 1981, 1525- 1526 of 1982.
MADON, J. This group of Writ Petitions under Article 32 of the Constitution and Appeals by certificate granted by the High Court of Gujarat and by Special Leave granted this Court raises questions relating to the constitutionality of section 15(1) of the Mines and Minerals (Regulation and Development) Act, 1957 (Act No. 67 of 1957), the power of the State Governments to make rules under the said section 15 to enable them to charge dead rent and royalty in respect of leases of minor minerals granted by them and to enhance the rates of dead rent and royalty during the subsistence of such leases, the validity of Rule 21-B of the Gujarat Minor Mineral Rules, 1966, and of certain notifications issued by the Government of Gujarat under the said section 15 amending the said Rules so as to enhance the rates of royalty and dead rent in respect of leases of minor minerals. These Notifications are :
(1). GU-74/121(A)/MCR-2173(49)7268/CHH dated November 29, 1974 (hereinafter referred to as "the 1974 Notification"), (2) GU-75/117-MCR-2173(49)/6431/CHH dated October 29, 1975 (hereinafter referred to as "the 1975 Notification"), (3) GU-76/39/MCR-2175(68) 4675-CHH dated April 6, 1976 (hereinafter referred to as "the 1976 Notification").
(4) GU-79/118/MCR-2178(127)-167-CHH dated March 26, 1979 (hereinafter referred to as "the Notification"), and (5). GU-81/75/MCR 2181/(168)-4536-CHH dated June 18, 1981 (hereinafter referred to as "the 1981 Notification").
The question of the validity of a circular, namely Circular No. M.C.R. 2180 (166) CHH dated February 12, 1981, issued by the Deputy Secretary, Industries, Mines and Electricity Department, Government of Gujarat, also falls for consideration in these Writ Petitions and Appeals.
It is unnecessary in order to decide these Writ Petitions and Appeals to relate the facts of each individual 501 matter. It will suffice if we state broadly how these Writ Petitions and Appeals have come to be filed. The parties before us, other than the State of Gujarat and governmental authorities, are persons to whom the State of Gujarat has granted quarry leases and mining leases in respect of minor minerals such as black trap, limestone, murrum, bentonite, rubble, marble, sandstone, quartzite, etc. In exercise of the powers conferred by section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the Government of Gujarat made the Gujarat Minor Mineral Rules, 1966. The said Rules came into force on April 1, 1966. All the leases in the matters before us were given in the form prescribed by the said Rules. Schedule I to the said Rules specified the rates at which royalty was payable and Schedule II specified the rates at which dead rent was payable. By the 1974 Notification the Government of Gujarat made the Gujarat Minor Mineral (Fourth Amendment) Rules, 1974, whereby Schedule I was substituted and Schedule II was amended with effect from December 1, 1974. Under the new Schedule I and the amended Schedule II the rates of royalty and dead rent in respect of certain minor minerals were enhanced. In view of several representations made to it, the Government of Gujarat decided not to implement the 1974 Notification and to refund the amount of royalty, if any, collected at the rates prescribed by the 1974 Notification. By the 1975 Notification the Government of Gujarat made the Gujarat Minor Mineral (Second Amendment) Rules, 1975, whereby Rule 21 of the said Rules and Schedule I were substituted with effect from November 1, 1975. By the said substituted Schedule I the rates of royalty in respect of several items were enhanced.
We may pause here to mention that the Appellant in Civil Appeal No. 706 of 1981, Ambalal Manibhai Patel, filed a writ petition in the Gujarat High Court, being Special Civil Application No. 66 of 1978, challenging the enhancement in the rate of royalty to Rs. 3 per metric tonne in respect of black trap and hard murrum specified in Item No. 4 of the said substituted Schedule I. The said writ petition was rejected by a learned Single Judge of that High Court. The Letters Patent Appeal against the order of the learned Single Judge, being Letters Patent Appeal No. 61 of 1978, was heard along with several writ petitions raising the same questions. The main contention raised in those matters was that under the proviso 502 to section 15(3) of the 1957 Act, the rate of royalty in respect of any minor mineral could not be enhanced by the State Government more than once during any period of four years and that the rate of royalty on black trap and hard murrum having been increased by the 1974 Notification, it could not be increased again in 1975. A subsidiary contention raised was that the State Government had no power to classify building stones into black trap and hard murrum because by doing so what the State Government had done in effect and substance was to declare black trap and hard murrum as minor minerals and that it was only the Central Government which possessed the power to declare any mineral not covered by the definition of the expression "minor minerals" in clause (c) of section 3 of the 1957 Act to be a minor mineral. Both these contentions were rejected by a Division Bench of the Gujarat High Court consisting of Thakkar and Mankad, JJ., by its judgment dated September 16- 17, 1980. The Division Bench held that the 1974 Notification had not become operative and, therefore, in lssuing the 1975 Notification the State Government had not violated the proviso to section 15(3), and that building stones having been already included in the definition of "minor minerals", there was no bar to the State Government classifying them into different varieties for the purpose of recovering royalty. Appeals have been filed in this Court challenging the correctness of the above judgment. The State of Gujarat has, however, not filed any appeal against this judgment.
By the 1976 Notification the Government of Gujarat made the Gujarat Minor Mineral (Second Amendment) Rules, 1976, substituting Schedule II to the said Rules. Schedule II prior to the said substitution was as follows :
" SCHEDULE II Rates of Dead Rent [See Rule 22 (i)(b)] 1. For specified Minor minerals.
For every 100 sq. meters or part thereof, upto 5 hectares Rs. 0.35P.
For each additional 1 hectare or part there of, exceeding 5 hectares Rs. 50.00 503
2. For other minor minerals For every 100 sq. meters or part thereof upto 5 hectares Rs. 0.20P.
For each additional hectare or part thereof exceeding 5 hectares. Rs. 35.00 By the 1976 notification Items 1 and 2 in Schedule II were substituted to read as follows :
"(1) for quarry leases for any minor mineral for every hectare or part thereof: Rs.500 (Five hundred) (2) for quarry parwana for any minor mineral for every parwana: Rs. 100 (One hundred)." On March 26, 1979, the Minster for Mines made a statement in the Legislative Assembly announcing the decision to implement from April 1, 1979, the new policy of dead rent framed by the Government. According to the said statement, the policy was aimed at breaking the hold of big lease-holders of minor minerals who, by finding loopholes in the said Rules, had acquired leases for the same mineral in different districts and had established a monopoly in the market and had made a fortune by exploiting labourers and evading payment of royalty. According to the said statement, such lease-holders quarried just enough minerals and created artificial shortages in order to control the market and maintain high levels of profits, and some lease-holders had acquired control of areas far in excess of the capacity of their crushers and did not allow entry to other industrialists. He further stated that under the said Rules lessees of minor minerals had to pay royalty on the basis of monthly returns but as true monthly returns were not submitted, evasion to the extent of five to ten per cent was taking place in the payment of royalty. Pursuant to this policy decision the 1979 Notification was issued by the Government of Gujarat. By the 1979 Notification the Government of Gujarat made the Gujarat Minor Minerals (Amendment) Rules, 1979, with effect from April 1, 1979. By this amendment a new Rule 21-B was inserted in the said Rules, Rule 22 was amended, Chapter IV of the said Rules which dealt 504 with grant of quarrying permits in respect of lands in which minerals belonged to the Government was deleted, Form was amended, Forms I, J and K were deleted, and Schedule I and II were substituted. By the substituted Schedule I, the rate of royalty on all minor minerals was specified as ten paise per metric tonne. By the substituted Schedule II the rate of dead rent per hectare or part thereof in respect of quarry leases was enhanced to Rs.1,200 in certain cases, Rs. 1,500 in some other cases, Rs. 2,000 in one case and Rs. 3,000 in the remaining cases. So far as quarry parwanas were concerned, the rate was specified as one-tenth of the rate for quarry leases per parwana.
A writ petition was filed by the said Ambalal Manilal Patel in the Gujarat High Court, being Special Civil Application No. 138 of 1978, challenging the enhancement in the rate of dead rent made by the 1976 Notification. This writ petition was dismissed by a learned Single Judge of that High Court on February 16, 1978. The Letters Patent Appeal filed against the judgment and order of the learned Single Judge was heard by a Division Bench of that High Court along with twenty-five writ petitions which challenged the 1979 Notification. The said Letters Patent Appeal and writ petitions were allowed by a Division Bench consisting of Sheth and Nanavati, JJ. The Division Bench held that the conditions in a lease in respect of minor minerals relating to the financial liability of a lessee derived their authority from sub-section (3) of section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, while conditions, other than those relating to a lessee's financial liability, regulating the grant of a lease derived their authority, from sub-section (1) of section 15, that the State Government had no power to enhance the rate of dead rent during the subsistence of a lease, and that Rule 21-B of the Gujarat Minor Mineral Rules, 1966, and the 1979 Notification were ultra vires section 15 and sub-clause (g) of clause (1) of Article 19 of the Constitution. The Division Bench accordingly issued a writ of mandamus against the State Government directing it to desist from enforcing the said Rule 21-B and the 1979 Notification. The Division Bench also made the same declaration in respect of the 1976 Notification and issued the same mandamus in respect thereof. The said judgment of the Division Bench is reported as Smt. Sonbai Pethalji v. State of Gujarat & Anr. BI (2) 1980 (2) Guj. L.R. 530.
505 The Government of Gujarat accepted the said judgment and did not come in appeal to this Court. Certain lessees of mining and quarry leases, however, have approached this Court by way of Appeals and Writ Petitions challenging the correctness of the judgment in SOL. Sonabai's Case. In view of the said judgment, the Government of Gujarat issued a circular addressed to all Collectors, District Development Officers and the Director, Geology and Mining, Ahmedabad, being Circular No. M.C.R. 2180 (166) CHH dated February 12, 1981, stating that in view of the aforesaid judgment of the Division Bench the position prior thereto would prevail and that Chapter IV of the said Rules which was deleted by the 1976 Notification would stand revived and would be applied.
The Government thereafter made the Gujarat Minor Mineral (Amendment) Rules, 1981, by issuing the 1981 Notification which came into force on June 20, 1981. By the 1981 Notification Rule 21-B was deleted, Rule 22 was amended, Chapter IV and certain Forms were inserted, Schedule I to the said Rules was substituted and Schedule II thereto deleted. Several lessees of mining and quarry leases filed writ petitions in the Gujarat High Court challenging the validity of the 1981 Notification and the said Circular.
These writ petitions were rejected on the ground that as connected proceedings were pending in this Court, it was open to the petitioners to move this Court if they so desired. Accordingly, the said petitioners as also others have filed Writ Petitions in this Court challenging the validity of the 1981 Notification and the said Circular as also in some cases Appeals against the order rejecting the writ petitions.
The parties before us - whether Petitioners, Appellants, or Respondents - fall in different groups according to how their interests are affected by one or the other of the impugned Notifications. They have, therefore, advanced different sets of submissions at the hearing of these Writ Petitions and Appeals. The reason for this is obvious. For extracting or excavating certain classes of minor minerals a larger surface area is required than for extracting or excavating other classes of minor minerals.
Thus for clay and earth a larger surface area is required than for bentonite because in the case of bentonite mining is required to be deeper. The result is that lessees of larger surface areas are affected more when the rate of dead rent is enhanced while the lessees of smaller surface areas are affected more when the rate of royalty is enhanced.
506 In order to understand the controversy between the parties and the rival submissions advanced at the Bar, it is necessary to trace briefly the legislative history of the enactments providing for the regulation of mines and the control and development of minerals in India and then to refer to the relevant statutory provisions in that behalf extracting such of them as are necessary. There was no statute dealing with these matters prior to the enactment of the Mines and Minerals (Regulation and Development) Act, 1948 (Act No. LIII of 1948) but they were governed by executive rules. Rules for the grant of
