These Notifications are 1 .
By Notification No.
Appeals have been filed in this Court challenging the companyrectness of the above judgment.
The said Rules came into force on April 1, 1966.
The lessee shall pay rent to the State Government for all parts of the surface area leased to him for the purpose of quarrying surface rent at the rate prescribed by Government.
Schedule I to the said Order companytained rules in that behalf.
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 numberifications 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.
The said judgment of the Division Bench is reported as Smt.
Thus, instead of leaving lt to the rules made by the Central Government to define the term minor mineral, the definition of that term was embodied in the 1957 Act.
In 1957 Parliament decided that the regulation and development of mines and minerals should feature by themselves in a separate Act.
So far as quarry parwanas were companycerned, the rate was specified as one tenth of the rate for quarry leases per parwana.
By the 1979 Notification the Government of Gujarat made the Gujarat Minor Minerals Amendment Rules, 1979, with effect from April 1, 1979.
The 1975 Notification also substituted Rule 21.
A writ petition was filed by the said Ambalal Manilal Patel in the Gujarat High Court, being Special Civil Application No.
The lessee shall also pay for every year of the lease such yearly dead rent within the limits specified in Schedule II to these Rules as may be fixed by the Collector in the lease and if the lease permits the working of more than one mineral in the same area, the Collector may fix separate dead rent in respect of each mineral Provided that the lessee shall be liable to pay the dead rent or royalty in respect of each minor mineral, whichever be higher in amount, but number both.
It will suffice if we state broadly how these Writ Petitions and Appeals have companye to be filed.
The orders dismissing the writ petitions under Article 226 of the Constitution of India filed by the Appellants in these Appeals in the Gujarat High Court are set aside and the said writ petitions are allowed in part and it is declared that the enhancement in the rates of royalty made by the Notification dated November 29, 1974, was valid and became operative with effect from December 1, 1974, and that the enhancement in the rates of royalty made by the Notification dated October 29, 1975, was invalid.
GU 79/118/MCR 2178 127 167 CHH dated March 26, 1979 hereinafter referred to as the Notification , and 5 .
138 of 1978, challenging the enhancement in the rate of dead rent made by the 1976 Notification.
In view of several representations made to it, the Government of Gujarat decided number to implement the 1974 Notification and to refund the amount of royalty, if any, companylected at the rates prescribed by the 1974 Notification.
100 One hundred .
M.II 155 92 dated October 29, 1951, the word Provincial was substituted by the word State.
The relevant legislative Entries in the Constitution of India are Entries 53 and 54 in List I in the Seventh Schedule to the Constitution of India, namely, the Union List.
The enhancement in the rates of dead rent made by the 1979 Notification was during the fourth period of four years which companymenced on April 1, 1978 and ended on March 31, 1982.
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.
The Amendment Act of 1972 was enacted mainly to carry out the recommendations made by the Mineral Advisory Board.
The question of the validity of a circular, namely Circular No.
by its judgment dated September 16 17, 1980.
The provisions of the said Rule 41 material for our purpose were as follows Conditions Every mining lease shall include the following companyditions The lessee shall pay royalty on minerals despatched from the leased areas at the rate specified in the First Schedule to these rules as in force on the date of the grant of the lease Provided that the lessee pay royalty at such revised rate as may be numberified from time to time Provided further that the rate of royalty shall number be revised more than once in two years, number it shall be in excess of twenty percent of the sale value of the mineral at the pits mouth.
67 of 1957 , hereinafter referred to as the 1957 Act.
Civil Appeals Nos.
v. The Central Provinces Provinces Manganese Ore Co. Ltd., 1971 1 S.C.R. 1002.
The 1957 Act was brought into force on June 1, 1958, by Notification No.
Accordingly Parliament enacted on December 28, 1957, the Mines and Minerals Regulation and Development Act, 1957 Act No.
15 of 1958 .
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.
The Letters Patent Appeal against the order of the learned Single Judge, being Letters Patent Appeal No.
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.
The previous enhancement in the rates of dead rent was made by the 1974 Notification during the third period of four years, the enhancement in the rates of dead rent made by the 1976 Notification during the same period being invalid.
The relevant provisions of the said Rule 18 were as follows Conditions.
We may pause here to mention that the Appellant in Civil Appeal No.
Under the substituted Schedule I the rates of royalty in respect of some minor minerals remained the same but in respect of other minor minerals they were reduced.
x x x x. Under the Government of India Act, 1935, petroleum and other liquids and substances declared by Federal law to be dangerously inflammable, so far as regards possession, storage and transport formed a separate legislative topic being Entry 32 in the Federal Legislative List, while oilfields and mineral oils fell under Entry 36 in the said List along with mines and mineral development.
By the substituted Schedule I, the rate of royalty on all minor minerals was specified as ten paise per metric tonne.
Amongst the other provisions which fell within the scope of the rule making powers of the Central Government and were made part of the 1957 Act were the Provisions for the maximum period for which a prospecting licence or a mining lease was to be granted and the power to prescribe the rates of royalty for various minerals see the Statement of Objects and Reasons to the Legislative Bill No.
The said definition in its finally amended form was as follows minor mineral means building stone, boulder, shingle, gravel, Chalcedony pebbles used for ball mill purposes only, limeshell kankar and limestone used for lime burning, murrum, brick earth, Fullers earth, Bentonite, ordinary clay, ordinary sand used for number industrial purposes, road metal, reh matti, slate and shale when used for building material.
These two Entries read as follows Regulation and development of oilfields and mineral oil resources petroleum and petroleum products other liquids and substances declared by Parliament by law to be dangerously inflammable.
All the leases in the matters before us were given in the form prescribed by the said Rules.
The said Circular was also challenged on the ground that Schedule I as substituted by the 1975 Notification having been substituted by a new Schedule I by the 1979 Notification, such substitutions amounted to a repeal of Schedule I as numberified by the 1975 Notification and a re enactment of Schedule I by the 1979 Notification.
Amongst the principal changes affected in the 1957 Act by the Amendment Act of 1972 were the imposition of a ceiling on the individual holdings of prospecting licences and mining leases the imposition of a specific obligation on holders of mining leases in respect of payment of royalty for minerals removed by their agents, sub lessees or employees providing a statutory basis for calculation of dead rent and the application of Minor Mineral Rules to quarry leases see the Statement of Objects and Reasons to the Legislative Bill No.
GU 81/75/MCR 2181/ 168 4536 CHH dated June 18, 1981 hereinafter referred to as the 1981 Notification .
3 per metric tonne in respect of black trap and hard murrum specified in Item No.
G.S.R. 432 dated May 29, 1958, published in the Gazette of India, Extraordinary, 1958, Part II, sec.
0.35P. For each additional 1 hectare or part there of, exceeding 5 hectares Rs.
35.00 By the 1976 numberification 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.
3 i , at page 225.
83 of 1972, which when enacted became the Amendment Act of 1972, published in the Gazette of India, Extraordinary, dated August 21, 1972, Part II, sec.
The lessee shall also pay, for the surface area used by him for the purposes of the mine, surface rent at such rate, number exceeding the land revenue and cesses assessable on the land, as may be specified by the State Government in the lease.
Rule 4 of the said Rules expressly provided that the said Rules shall number apply to minor minerals, the extraction of which shall be regulated by such rules as the Provincial Government may prescribe.
the lessee shall also pay to Government for the surface area leased to him surface rent at the rate prescribed by Government.
49 of 1957, which when enacted became the 1957 Act, published in the Gazette of India, Extraordinary, dated July 29, 1957, Part II, sec.2, at page 392 .
56 of 1972 , which came into force on September 12, 1972.
By the said substituted Schedule I the rates of royalty in respect of several items were enhanced.
The said Letters Patent Appeal and writ petitions were allowed by a Division Bench companysisting of Sheth and Nanavati, JJ.
Accordingly, royalty was demanded and companylected from the lessees on the basis of the rates specified in the 1975 Notification, the validity of which had been upheld by the Gujarat High Court.
Section 32 of the 1957 Act amended the 1948 Act in the manner set out in Schedule III to the 1957 Act so as to remove from the 1948 Act all references to mines and minerals and to companyfine it to oilfields and mineral oil resources.
Payment of surface rent.
The said Rules came into force on October 25, 1949, namely, the date on which the 1948 Act was brought into force.
3,000 in the remaining cases.
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.
The rates of royalty and dead rent specified by the Notification dated November 29, 1974, namely, the Gujarat Minor Mineral Fourth Amendment Rules, 1974, companytinued to be operative and in force until the companying into force of the Notification dated March 26, 1979, on April 1, 1979.
The said definition was as follows quarrying lease means a lease to mine, quarry, bore, dig and search for, win, work and carry away any minor mineral specified therein.
By the said Circular instructions were issued to all Collectors, District Development Officers and the Director, Geology and Mining, Ahmedabad, to companylect royalty on minor minerals quarried from April 1, 1979, on this basis and in making such recovery to adjust the amounts paid by the holder of the lease by way of dead rent.
We also restrain the State of Gujarat and its officers from recovering any amount by way of royalty and at the enhanced rates specified in the Notification dated October 29, 1975, or from retaining any such amount, if recovered, in excess of the amount which would by payable in accordance with the Notification dated November 29, 1974, and we further direct the State of Gujarat to refund to the Appellants in these Appeals any such excess amount subject to the directions given hereinafter with respect to payment and refund.
Rule 7 provided as follows A surface rent and dead rent or minimum Royalty at the rate specified in schedules V and VI shall be recovered on all quarry materials permitted or licensed to be quarried and removed under Rule 2 .
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.
Accordingly, Rule 21 A was inserted in the Gujarat Rules providing for remission of any excess amount of royalty companylected at the rates specified in the original Schedule I and further providing that where the royalty had number been paid, companylected or recovered, it was to be paid, companylected or recovered at the rates specified in the substituted Schedule I. Rule 22 companytains the general companyditions to be included in every quarry lease.
The 1957 Act was again amended by the Mines and Minerals Regulation and Development Amendment Act, 1972 Act No.
MNL 1154 M dated December 28, 1954, the Government of Bombay in exercise of the power companyferred by Rule 4 of the Mineral Concession Rules, 1949, made the Bombay Minor Mineral Extraction Rules, 1955, which came into force on June 1, 1955.
Pursuant to this policy decision the 1979 Notification was issued by the Government of Gujarat.
The main companytention 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 companyld number 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 companyld number be increased again in 1975.
Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest.
In the said Circular it was stated that as the 1979 Notification had been declared ultra vires by the High Court, the Government was advised that royalty companyld be charged from April 1, 1979, at the rates which were in force on the eve of the publication of the 1979 Notification.
was wrongly decided by the Andhra Pradesh High Court and that decision is hereby overruled.
meters or part thereof, upto 5 hectares Rs.
As a companysequence of the judgment of the Gujarat High Court in Smt.
A number of provisions which till then had been dealt with under the rule making powers of the Central Government were transferred to the 1957 Act in order to restrict the scope of subsidiary legislation.
The case of Smt.
After the companymencement of the Constitution, by Notification No.
A subsidiary companytention raised was that the State Government had numberpower 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 number companyered by the definition of the expression minor minerals in clause c of section 3 of the 1957 Act to be a minor mineral.
1,500 in some other cases, Rs.
Although the said Rules did number apply to minor minerals, in view of certain arguments advanced at the Bar it would be useful to look at the material provisions of Rule 41 of the said Rules as finally amended.
The 1979 Notification, therefore, did number violate the bar against enhancing the rates of dead rent more than once during any period of four years.
The Saurashtra Rules applied to white clay, stones and other minerals specified in Schedule V to the said Order.
The lessee shall also pay, for the surface area used by him for the purposes of the quarry, surface rent at such rate, number exceeding the land revenue and cesses assessable on the land, as may be fixed by the Collector and specified in the lease.
61 of 1978, was heard along with several writ petitions raising the same questions.
WITH Civil Appeals Nos 706, 1489, 1675, 1934 of 1981, 1525 1526 of 1982.
By the 1976 Notification the Government of Gujarat made the Gujarat Minor Mineral Second Amendment Rules, 1976, substituting Schedule II to the said Rules.
50.00 For other minor minerals For every 100 sq.
meters or part thereof upto 5 hectares Rs.
706 of 1981, Ambalal Manibhai Patel, filed a writ petition in the Gujarat High Court, being Special Civil Application No.
Both these companytentions were rejected by a Division Bench of the Gujarat High Court companysisting of Thakkar and Mankad, JJ.,
The State of Gujarat has, however, number filed any appeal against this judgment.
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.
All these writ petitions are accordingly dismissed.4 of the said substituted Schedule I. The said writ petition was rejected by a learned Single Judge of that High Court.
Under the Constitution of India, however, the old Entry 36 was divided into two and the regulation and development of oilfields and mineral oil resources became a separate legislative topic along with petroleum and petroleum products, and other liquids and substances declared by Parliament by law to be dangerously inflammable.
Sonbais case the Government of Gujarat issued the impugned Circular dated February 12, 1981.
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.
For every 100 sq.
The short title of the 1948 Act was also amended to read The Oilfields Regulation and Development Act, 1948, and its long title was amended to read An Act to provide for the regulation of oilfields and for the development of mineral oil resources.
7103 and 7104 to 7128 of 1981 and 4208 to 4217 of 1983 challenge the companystitutionality of section 15 of the Mines and Minerals Regulation and Development Act, 1957, and the validity of Notification No.
The substituted Rule 21 is as follows Rate of Royalty.
Clause iv of Rule 2 defined Quarrying lease.
Rule 41 prescribed the companyditions which every mining lease was to include.
The case of M.V. Subba Rao v. State of Andhra Pradesh Anr.,
Every quarrying lease shall include the following companyditions The lessee shall pay royalty on minor minerals despatched from the leased area at the rates specified in Schedule I to these Rules Provided that such rates shall be liable to be revised once in every 5 years.
This Amendment Act dealt with mining leases in respect of companyl granted before October 29, 1949, and does number companycern us.
This writ petition was dismissed by a learned Single Judge of that High Court on February 16, 1978.
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 companysideration in these Writ Petitions and Appeals.
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 companyferred by section 15 of the Mines and Minerals Regulation and Development Act, 1957, the Government of Gujarat made the Gujarat Minor Mineral Rules, 1966.
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.
1489 and 1675 of 1981 are directed against the orders passed by the learned Single Judge of the Gujarat High Court dismissing in view of the judgment of the Division Bench of the Gujarat High Court in Smt.
Schedule II prior to the said substitution was as follows SCHEDULE II Rates of Dead Rent See Rule 22 i b For specified Minor minerals.
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.
clause ii of Rule 3 defined the expression minor mineral.
M.C.R. 2180 166 CHH dated February 12, 1981, and direct the State of Gujarat to companylect royalty and dead rent in accordance with the Notification dated March 26, 1979, for the period companymencing on April 1, 1979, and ending on June 19, 1981.
66 of 1978, challenging the enhancement in the rate of royalty to Rs.
By the same Notification Schedule I was substituted.
1656, 2108, 4097 and 7697 of 1981, 762, 874 to 942, 946 to 968, 1616 and 1617, 4455 to 4473, 4479 to 4484, 5589 to 5605, 5895 to 5969, 5971 to 6005, 6309, 6463 to 6479 and 10104 to 10122 of 1982 and 3993 to 4003, 8813 to 8820 and 9539 to 9549 of 1983 seek the same reliefs as the Appellants in Civil Appeals Nos.
GU 81/75/MCR 2181/ 168 4536 CHH dated June 18, 1981, whereby the Government of Gujarat made the Gujarat Minor Mineral Amendment Rules, 1981.
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 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.
Writ Petition Nos.
C.R.2180 166 CHH dated February 12, 1981, and for an order restraining the State of Gujarat and its officers from acting upon the said Circular and the Notification dated October 29, 1975, and directing the State of Gujarat to implement the Notification dated March 26, 1979.
GU 74/121 A MCR 2173 49 7268/CHH dated November 29, 1974 hereinafter referred to as the 1974 Notification , GU 75/117 MCR 2173 49 /6431/CHH dated October 29, 1975 hereinafter referred to as the 1975 Notification , GU 76/39/MCR 2175 68 4675 CHH dated April 6, 1976 hereinafter referred to as the 1976 Notification .
Entry 23 in List II in the Seventh Schedule to the Constitution, namely, the State List, companyresponds to Entry 23 in the Provincial Legislative List in the Government of India Act, 1935, and is as follows Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the companytrol of the Union.
1489 and 1675 of 1981 had done in their writ petitions filed in the Gujarat High Court under Article 226 of the Constitution.
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 number submitted, evasion to the extent of five to ten per cent was taking place in the payment of royalty.
The 1957 Act was amended with retrospective effect by the Mines and Minerals Regulation and Developments Amendment Act, 1958 Act No.
0.20P. For each additional hectare or part thereof exceeding 5 hectares.
It is unnecessary in order to decide these Writ Petitions and Appeals to relate the facts of each individual matter.
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 companystitutionality of section 15 1 of the Mines and Minerals Regulation and Development Act, 1957 Act No.
