The rule-making power under Section 15(1) of the Mines and Minerals (Regulation and Development) Act, 1957, and Rule 17(1)(i) of the West Bengal Minor Minerals Rules, 1959, extends only to minor minerals, which are defined to include ordinary clay. Ordinary earth is not the same as ordinary clay, and therefore, the entry in Schedule I relating to ordinary earth for brick making is not covered by the rule-making power.

( 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 Union. "

( 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 (c) 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 (vide Notification No, 1844 M. P. dated 13-5-59) (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 authorised by the State Government in this behalf. " rule 17 (1) (i) of the Rules provides as