The competency of the Central Government to issue notifications declaring substances as minor minerals under Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957.

1. The petitioners claimed that they have excavated ordinary earth which by itself is not declared to be a "mineral" under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 ("the said Act" for short). The royalty was charged on the petitioners on the excavated ordinary earth on the basis of notification dated 03.02.2000 issued by the Central Government in exercise of its power conferred by the provisions of Section 3(e) of the said Act.

The petitions claim the reliefs as under;

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

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

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

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

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

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

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

2. On 27.07.2000, this Court had passed an order as under;

"Rule.

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

"in case the earth has been extracted before 3.2.2000"

Rule on interim relief returnable after 8 weeks"

On 09.10.2000, the aforesaid order was modified, as under;

"Heard the learned counsel for the parties.

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

3. The challenge to the notification dated 03.02.2000 at Annexure-C is on the ground of competency of the Central Government to issue such notification declaring the "ordinary earth" as "minor mineral". Shri Naik, the learned counsel appearing for the petitioners in W.P.No.2558 of 2000, fairly concedes that the issue is covered by the decision of the Apex Court in the case of Som Datta Builders Limited vrs. Union of India and others, reported in (2010) 1 SCC 311. The very same notification was under challenge in this decision of the Apex Court and it has been held that though a substance has to be a mineral before it can be notified as a "minor mineral" pursuant to the power under Section 3(e) of the said Act, the Central Government was competent to issue the notification declaring ordinary earth is comprehended within the meaning of "any other mineral" and paras 25 and 26 of the said decision, being relevant, are reproduced below;

"25. In the context of Section 3(e), what we have discussed above, we hold, as it must be, that "ordinary earth" is comprehended within the meaning of the word "any other mineral". We adopt the re