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High Court Of Rajasthan
Judgename : J.R.CHOPRA,A.K.MATHUR,M.C.JAIN
BUX - Appellant
Versus
STATE OF RAJASTHAN - Respondent
CIV. WRIT PETITION 441 Of 1981
Decided On : 02/22/1993
MINERALS - LEASE - BRICK KILN - RAJASTHAN MINOR MINERAL CONCESSION RULES, 1977 - RAJASTHAN COLONISATION PROJECT AREAS BRICK KILN (LEASES) CONDITIONS, 1966 - VALIDITY - INTERPRETATION - SCOPE - CONFLICT - RESOLUTION.
Fact of the Case:
The petitioners, manufacturers of bricks in Bikaner, challenged the validity of Rule 4(3) of the Rajasthan Minor Mineral Concession Rules, 1977, which required them to obtain a no-objection certificate from the Colonisation Commissioner under the Rajasthan Colonisation Act, 1954, before obtaining a mining lease for brick earth.
Finding of the Court:
The Court held that Rule 4(3) of the Rajasthan Minor Mineral Concession Rules, 1977, was ultra vires and invalid as it made the grant of mining leases dependent on an authority created under the Colonisation Act of 1954, which had no power under the Rules framed under the Mines and Minerals (Regulation and Development) Act, 1957.
Issues: 1. Whether under the Rules of 1977 in the lease of brick-earth, establishment of brick-kiln is also implied and if so whether subject matter of allotment of sites for establishment of brick-kilns is covered by the Rules of 1977? 2. Whether the Rajasthan Colonisation Project Areas Brick Kiln (Lease) Conditions, 1966 only deal with the allotment of sites for the establishment of brick-kiln, a subject covered by Entry 18 of the List I of Schedule VII of the Constitution and as such are valid? 3. Whether the Rajasthan Colonisation Project Areas Brick Kiln (lease) Conditions, 1966 are beyond the authority of the State Government and as such are ultra vires of its powers? 4. Whether the view of this Court in Shivchand Goyal v. State of Rajasthan, 1967 Raj LW 30, that in the lease of brick earth granted under the Rajasthan Minor Mineral Concession Rules, 1977 framed under S. 15 of the Minor and Minerals (Regulation and Development) Act, 1957 the establishment of brick-kiln is implied is not good law, and if so whether establishment of brick-kiln is a subject not covered by Entry No. 54 of the List I (Union List) of Schedule VII of the Constitution and is covered by Entry 18 of List II of Schedule VII of the Constitution and as such the conditions of 1966 are valid?
Ratio Decidendi: 1. The regulation and development of minerals is primarily reserved for the Union of India under Entry 54 of List I of the Seventh Schedule of the Constitution. 2. The Parliament has the power to declare the law for regulation and development of minerals in the public interest. 3. The Mines and Minerals (Regulation and Development) Act, 1957 is the Central Law framed by the Parliament for regulation and development of minerals. 4. Section 15 of the Act of 1957 confers power on the State Government to frame rules for minor minerals. 5. The Rajasthan Minor Mineral Concession Rules, 1977 were framed by the State Government in exercise of the power conferred by Section 15 of the Act of 1957. 6. The Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 were framed by the State Government under the Rajasthan Colonisation Act, 1954. 7. The Conditions of 1966 govern the grant of leases for brick kilns in the colony area. 8. The Conditions of 1966 are valid to the extent they earmark the area for establishment of brick kilns and demarcate them into plots. 9. The Conditions of 1966 are ultra vires and invalid to the extent they deal with the procedure for allotment of mining leases.
Final Decision: The Court answered the questions referred to it as follows: 1. The area for establishment of brick kilns shall be made available by the Commissioner Collector/colonisation and the allotment of leases shall made by the Mining Department under the Rules of 1977. R. 4 (3) of the Rules of 1977 is ultra vires. 2. The Conditions Nos. 6, 7, 9, 10, 11 and 12 of the Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 are ultra vires and they are struck down. Entry 18 of List II of Seventh Schedule does not cover the minerals. 3. The Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 are beyond the authority/competence of the State Government to the extent of grant of mining leases. 4. The law laid down in Shivchand Goyals case (1967 Raj LW 30) is good law and the establishment of brick kiln is covered by Entry 54 of List I of the Seventh Schedule of the Constitution and not by Entry 18 of List II of the Seventh Schedule of the Constitution and the Conditions of 1966 are ultra vires beyond the ear-marking of the area for establishment of brick kilns.
MATHUR, J.
( 1 ) THIS matter has been referred to this Full Bench by Honble the Chief Justice on account of the reference made by the learned single Judge by his order dated 2-2-1982, whereby the learned single Judge has referred the following four ques-tions for consideration of the Full Bench, which read as under :-"1. Whether under the Rules of 1977 in the lease of brick-earth, establishment of brick-kiln is also implied and if so whether subject matter of allotment of sites for establishment of brick-kilns is covered by the Rules of 1977 ?""2. Whether the Rajasthan Colonisation Project Areas Brick Kiln (Lease) Conditions, 1966 only deal with the allotment of sites for the establishment of brick-kiln, a subject covered by Entry 18 of the List I of Sche-dule VII of the Constitution and as such are valid ?"3. Whether the Rajasthan Colonisation Project Areas Brick Kiln (lease) Conditions, 1966 are beyond the authority of the State Government and as such are ultra vires of its powers ?"4. Whether the view of this Court in Shiv-chand Goyal v. State of Rajasthan, 1967 Raj LW 30, that in the lease of brick earth granted under the Rajasthan Minor Mineral Con-cession Rules, 1977 framed under S. 15 of the Minor and Minerals (Regulation and Development) Act, 1957 the establishment of brick-kiln is implied is not good law, and if so whether establishment of brick-kiln is a subject not covered by Entry No. 54 of the List I (Union List) of Schedule VII of the Constitution and is covered by Entry 18 of List II of Schedule VII of the Constitution and as such the conditions of 1966 are valid ?"
( 2 ) BEFORE we answer these questions, it will be necessary to refer the law on the subject as well as the brief facts giving rise to this controversy.
( 3 ) THE petitioners Mohd. Bux and Ahmed Bux filed a writ petition praying that R. 4 (3) of the Rajasthan Minor Mineral Concession Rules, 1977 may be declared unconstitutional and void and be struck down and the Mining Engineer, Bikaner may be directed to proceed with the petitioners application for grant of the mining lease without a no Objection Certificate from the Colonisation Commis-sioner and he may be directed to ignore Rule 4 (3) of the Minor Mineral Concession Rules, 1977.
( 4 ) THE petitioners and their father are manufacturers of bricks in Bikaner. The petitioners father had a mining lease under the Rajasthan Minor Mineral Concession Rules, 1959 for excavating the brick-earth or manufacturing the bricks for the period from 7-2-1973 to 6-2-1978. Before the expiry of this lease, the State Government framed the Rajasthan Minor Mineral Concession Rules, 1977 (referred to hereinafter as the Rules of 1977) in exercise of the powers conferred on the State Government by S. 15 of the Mines and Minerals (Regulation and Development) Act, 1957. These Rules superseded the Rajas-than Minor Mineral Concession Rules, 1959, Rule 4 (3) of the Rules of 1977 provides that no lease shall be granted or renewed in any area which is a colony within the meaning of the Rajasthan Colonisation Act, 1954 (here-inafter referred to as the Act of 1954) unless the applicant produces a no Objection Certificate from the Colonisation Commissioner under the said Act. Prior to the framing of the Rules of 1977, the State Government in exercise of the powers conferred by S. 28 read with Sub-Secs. (1) and (2) of the Act of 1954 prescribed conditions named as the Rajas-than Colonisation Project Areas Brick Kiln (Leases) Conditions 1966 (hereinafter called as the Conditions of 1966 ). Under the Conditions of 1966 the brick kilns can be established on a lease granted by the Collector by a public auction. Condition 4 provides for reservation of lands for this purpose. Condi-tions 6, 7, 8 and 9 provide the procedure for the auction and grant of the lease. Condi-tion 12 provides that immediately on the grant of a lease by the Collector under Condition 10 the Collector shall inform the Mining Department and on receipt of suc
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