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HIGH COURT OF CALCUTTA
DEEP NARAYAN SINHA, B. C. MISRA
STATE OF WEST BENGAL - Appellant
Versus
JAGADAMBA PRASAD SINGH - Respondent
C. R. 368 (W) Of 1962
Decided On : July 30, 1968
MINES AND MINERALS (REGULATION AND DEVELOPMENT) ACT, 1957 - SECTIONS 3(E), 9, 14, 15(1) - WEST BENGAL MINOR MINERALS RULES, 1959 - RULES 4(1), 17(1)(I), 25, 26 - SCHEDULE I - VALIDITY - ORDINARY EARTH FOR BRICK-MAKING - WHETHER A MINOR MINERAL - POWER TO MAKE RULES - EXTENT OF.
Fact of the Case:
The petitioners, brick manufacturers, were served with notices by the Junior Land Reforms Officer, purporting to act under the West Bengal Minor Minerals Rules, 1959, calling upon them to produce their account books for the purpose of assessment of royalty and to obtain a license. The petitioners challenged the validity of Rule 17(1)(i) of the Rules, read with the relevant entry in Schedule I, which imposed a royalty on "ordinary earth for brick-making".
Finding of the Court:
The Court held that "ordinary earth" is not identical with "ordinary clay" and therefore, cannot be called a minor mineral. The word "clay" is not identical with "earth". Some kind of earth may be clay. For example earth mixed with water, or silt may be called clay. But while the definition of minor minerals includes a particular kind of clay namely "ordinary clay", under Schedule I the royalty is payable on "ordinary earth". Thus, even if the word "earth" is wide enough to include "clay" it cannot be said that "ordinary earth" is identical with "ordinary clay". In this case, we are not concerned with "clay" in general, but only "ordinary clay." If 'clay' is a special kind of "earth", then it would be excluded from the expression "ordinary earth". Nobody ever speaks of "ordinary earth" as a mineral. In other words, the expression "clay" may be included within the expression "earth" but "ordinary earth" cannot be equated with "ordinary clay".
Issues: Whether Rule 17(1)(i) of the West Bengal Minor Minerals Rules, 1959, read with the relevant entry in Schedule I, imposing a royalty on "ordinary earth for brick-making", is ultra vires.
Ratio Decidendi: The Court held that the State Government had no right to make rules under the Mines and Minerals (Regulation and Development) Act, 1957, in respect of "ordinary earth" and had no right to insist upon the respondents taking out permits for the use of "ordinary earth", for the manufacture of bricks and pay royalty therefor, and the demands made in that behalf AIR all contrary to law and must be struck down. The Court held that the provision in Schedule I relating to the taking out of a license and paying royalty for digging up ordinary earth for brick making is ultra vires the rule making power contained in Section 15(1) of the said Act and Rule 17(1)(i) of the said Rules.
Final Decision: The Court dismissed the appeals, allowed the cross-appeals, and issued writs restraining the appellants from giving effect to the order or orders complained of in the respective petitions or from taking any action or steps for realization of royalty according to the rates in Schedule I of the West Bengal Minor Minerals Rules, 1959. The Court also restrained the appellants from proceeding with or taking any further steps in the criminal cases pending before the respondent, Sub-Divisional Magistrate. The Court struck down that part of the order which directed that Government may call upon the respondents to apply for mining leases. The Court made it clear that this order was made only on the ground mentioned in its judgment, but all other grounds were, by consent, kept open.
( 1 ) THESE four appeals have been heard together and they relate to a judgment of D. Basu, J. , dated the 8th July, 1964, in C. R. Nos. 368 (W) of 1962 and 433 (W), 434 (W) and 436 (W) of 1963 which were heard analogously. F. M. A. 490 relates to C. R. No. 368 (W) of 1962. F. M. A. 491 relates to C. R. No. 433 (W) of 1963, F. M. A. 492 relates to C. R. No. 434 (W) of 1963 and F. M. A. 493 relates to C. R. No. 436 (W) of 1963. All these matters have given rise to a common question of law which is as follows: The Mines and Minerals (Regulations and Development) Act, 1957 (hereinafter referred to as the "said Act") was passed by Parliament in exercise of the power given to it under Entry 54 of List I of the seventh Schedule of the Constitution which gives the Union Parliament exclusive legislative power with respect to -"regulation of mines and minerals development to the extent of which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. "entry 23 of List II, that is to say the State List, runs as follows: -"regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the DUnion. "
( 2 ) THE said Act states in the preamble that it is an Act to provide for the regulation of mines and development of minerals under the control of the Union. Under Section 1, the said Act extends to the whole of India and shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. By a notification of the Central Government, it came into force on the 1st of June, 1958. Under Section 2, it was declared that - "it was expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided". Section 3 of the said Act is the definition section. Clause (e) is as follows: -" 'minor Minerals' means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;"a 'mining lease' is defined in clause (e) of Section 3 as -"a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. "and, 'mining operations' under clause (d) means 'any operations undertaken for the purpose of winning any mineral'.
( 3 ) SECTION 9 of the said Act provides that the holder of a 'mining lease' must pay in respect of any mineral removed by him from the lease area, royalty at the rate specified in the Second Schedule of the Act. Section 14, however, says that -"the provisions of Sections 4-13 (inclusive) shall not apply to prospecting licences and mining leases in respect of minor minerals. "
( 4 ) THE result of the provisions contained in Section 14 is that the provision as regards royalty, in Section 9, are not applicable to mining leases in respect of 'minor minerals'. For minor minerals, separate provisions have been made. Section 15 (1) for instance says:"the State Government may, by notification in the Official Gazette make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. "
( 5 ) BY virtue of the power conferred by Section 15 (1) of the Act, as aforesaid, the State of West Bengal has framed the West Bengal Minor Minerals Rules, 1959 (hereinafter referred to as 'the said Rules') for -"regulating the grant of mining leases in respect of minor minerals and for purposes connected therewith. "rule 4 (1) of these rules provides that -"a mining lease shall be granted by the State Government or by an officer authorized by the State Government in this behalf. "rule 17 (1) (i) of the Rules provides as follows: -"every mining lease shall include and be
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