Banshidhar Saikia and Another vs B.K. Bhuyan and Another

G. Mehrotra, C.J.—As common questions of law have been raised in these two petitions they will be disposed of by one judgment The main question argued in these petitions is the constitutionality of the provisions of Section 155 (f) of the Assam Land and Revenue Regulation. 1880 (hereinafter called ''the Regulation'') and Rule 190 of the rules framed in the exercise of the power under the afoersaid section (here an after called ''the Rules'')

The facts of the petition giving rise to rule No. 126 are that the Petitioner has his houses on his land covered by dag No. 365 of K.P. Patta No. 65 of Saropather-Bongaligaon, Kheremia Mouze in the District of Lakhimpur. Some of these shop houses were let out to tenants The patta was originally annual hut was converted into a periodic patta by an order of the Sub-Deputy Collector dated 8th December, 1959 Out of the total area of the lag, which, was 2 bighas 1 katha 8 laches the Petitioner, owns 1 bigha 4 kathas 10 laches The Oil India Ltd. which is arrayed in these petitions as opposite party No. 2, obtained letters of grant under Oilfield (Regulation and Development). Act 1948 for mining on 10th January 1961 Over the prospecting license (PL) in certain areas in Assam The substantial part of the area covered by the mining lease was acquired by opposite party No.2 There was some dispute going on between the opposite party No. 2 and the Petitioner with regard to some portions of the area of dag No. 365.

On the 18th May 1964 the opposite party No. 2 applied to the Deputy Commissioner under Rule 190 of the rules for a grant of possession over the land and in order to carry on mining activities. On the 2nd June 1964 the Deputy Com-missioner, Lakhimpur, Dibrugarh issued a notice for general information stating therein that the opposite party No. 2 had applied to him for sanction of authority for enforcement of the rights under the mining lease. The Petitioner was also served with the notice and on the 4th June 1964 an order was passed by the Deputy Commissioner under Rule 190, the validity of which has been challenged by means of the present petition. The Petitioner further alleges that on the 24th June 1964 at about 11.30 A.M., the Executive Sub-Deputy Collector. Naharkaliya Sri U.C. Neog with a few police officers and constables forcibly entered upon the above 2 kathas of the land in spite of protests of the Petitioner and the occupants and ousted the Petitioner and the occupants from the land and gave delivery of possession of the land lo the officials of the Oil India Ltd. The area of 2 kathas was fenced by the officials of the Oil India Lid., and the Petitioner and the occupants were not allowed to remove their moveables.

The first submission made by Dr. Medhi who appears for the Petitioner is that the entire ambit of the power conferred on the State Government to frame rules u/s 155(f) of the Regulation namely the granting of licenses, on the farming of the right, to work mines. stones and lime quarries, salt-wells and oil-wells, has been covered by the two Central Acts -The Oilfields (Regulation and Development) Act. 1948 (Act LIII of 1948) and the Mines and Minerals (Regulation and Development) Act 1957 (Act 67 of 1957) - and as the entire field of legislation on the subjects of mines and exploration of oilfields has been covered by these two Central Acts, the provisions of Section 155(1) of the Regulation stand superseded The contention is that under the Constitution of India Seventh Schedule. List I entry No. 53 provides for regulation and development of oilfields and mineral oil resources; petroleum and petroleum products. other liquids and sub stances declared by Parliament by law to be dangerously inflammable and entry 54 provides for regulation of mines and mineral develop-ment to the extent to 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 No. 23 of List II of the Seventh Schedule gives power to the State legislature to enact law for 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 The Government of India Act 1935 entry No. 36 of List I corresponded with entry No. 54 of List No. 1 of the Seventh Schedule of the Constitution and entry No. 23 of List II of the Seventh Schedule of the Constitution is similar to entry No. 23 List II of the Constitution Act of 1935 As the Central Government has exercised powers in the year 1948 under item 36 of the List No. 1 of the Government of India Act 1935 and in the 1957 under item 54 of List I of the Seventh Schedule of the Constitution, the power of all State Legislatures to enact law relating to those subjects has vanished and any Act passed before or after the Constitution or eventhe Government of India Act 1935 by the state Legislatures will have no effect. This argument assumes that the Regulation will be deemed to be an Act passed by the Assam Legislature in the exercise of its powers under either entry 28 of List II of the Government of India Act 1985 or entry No. 28 of List II of the 7th Schedule of the Constitution. The Assam Land and Revenue Regulation was passed in the year 1886 by the Governor General in Council in accordance with the provisions of Section 1 of the Government of India Act 1870. Section 3(7) of the General Clauses Act defines a Central Act as follows:

''Central Act'' shall mean an Act of Parliament, and shall include--

(a) an Art of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and

(b) an Act made before such commencement by the Governor General in Council or the Governor General acting in the legislative capacity.

Thus the Regulation will be regarded as a Central Act and no question of the taking away of the power of the State Legislature as soon as the declaration is made by Parliament either under entry 54 of List I of the Seventh Schedule of the Constitution or by the competent legislature under entry 36 of List I of the Government of India Act will arise in regard to the Regulation. The Regulation cannot be said to haw been enacted in the exercise of the powers given to the Assam Legislature either under entry ''23'' of the List II of the Constitution or under entry 28 of List II of the Government of India Act 1985, nor can there be any question of repugnancy between the two. On the proper examination of the provisions of the Regulation it will appear that in pith and substance it is an Act relating to land and thus neither the Regulation as a whole nor Section 155(f) will be deemed to have been superseded by passing of the Act of 1948 and 1957.

Section 6 of the Regulation provides:

No right of any description shall he deemed to have been, or shall be acquired by any person over any land to which this Chapter applies, except the following;

(a) rights of proprietors, landholders am; settlement-holders other than landholders, as defined in this Regulation, and other rights acquired m manner provided by this Regulation;

(b) rights legally derived from any right men tioned in Clause (a);

(c) rights acquired under sections 20 and 27 of the Indian Limitation Act, 1877

(d) rights acquired by any person as tenant under the Rent Law for the lime being in force;

Provided that nothing in this section shall be held to derogate from the terms of any lease granted by or on behalf of the Crown.

Section 9 of the Regulation lays down as follows:

A landholder shall have a permanent, heritable and transferable right of use and occupancy in his land, subject to-

(a) the payment of all revenue, taxes, cesses and rates from time to time legally assessed or imposed in respect of the land;

(b) the reservation in favour of the Crown of all quarries and of all mines, minerals and mineral oils, and of all buried treasure, with full limberly to search for and work the same, paying to the landholder only compensation for the surface damage as estimated by the Deputy Commissioner; and

(c) the special conditions of any engagement into which the landholder may have entered with the Crown.

A close examination of the provisions of the Assam Land and Revenue Regulation will reveal that the land belongs to the Government and it is the State Government which confers right on various landholders. The Government however u/s 9 reserves its rights with regard to the mines. This section means that any right conferred on the landholders will he subject to the right of the Government to work the mines and thus if the Government makes a rule providing for a right to the lessees of the right to work the mines or oil fields, to enter the land which has been settled by the Government with any third party it is only the power of the Government to give effect to the provisions of the Regulation. Any rule framed laving down the circumstances under which a third party can enter on the land which has been settled with the land holder by the Government cannot be said to be an act relating to mines or minerals It is essentially and in substance an act relating to land The scope and the field covered by the Acts of 1948 and 1957 is entirely different from that of the Regulation and thus there can be no repugnaney between the two Acts.

Reliance has been placed on the case of State of Orissa Vs. M.A. Tulloch and Co., The question which was canvassed in that case was whether the Orissa Mining Areas Development Fund Act (27 of 1952) is superseded by Mines and Minerals (Regulation and Development) Act (1957) and it was held that the Orissa Mining Areas Development Fund Act has been superseded by the Mines and Minerals (Regulation and Development) Act 1957 That case was decided on the language of entry 51 of List I of the Seventh Schedule and entry 28 of List II of the Seventh Schedule It was held that after the declaration was made by Parliament as required under entry 54 of List I of the Seventh Schedule, the power of the State Legislature to enact any law under entry 23 List II of the Seventh Schedule to the Constitution is taken away. though the State Legislation may have been passed prior to or after the Central Act of Parliament.

The following passage in the judgment sets out the ratio of that decision:

It does not need much argument to realise that to the extent to which the Union Government had taken under ''its control'' ''the regulation and development of minerals'' so much has withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation., of the Slate which had rested on the existence of power under that entry would to the extent of that '' control'' be superseded or be rendered ineffective, for here we have a case not of'' mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State Legislative power by the declaration which Parliament is empowered to make and has made.

Thus this case only lays down that by the declaration made by Parliament the power of the State legislature under entry 23 must be held to have been superseded.

In the present case the Regulation does not rest on the existence of power under entry 23 of List II and thus if the power of the Assam Legislature under entry 23 of List II has been token away by enacting the Act of 1957, the Regulation cannot be said to be destroyed the Regulation is a Central Act by virtue of the definition under the General Clauses Act. It is an existing Law within the meaning of the Constitution and thus it does not derive its existence by virtue of the power conferred on the Assam Legislature under either entry 23 of List II of the Seventh Schedule of the Constitution or entry 23 of List IT of the Government of India Act 1935. Even on the examination of the provisions of the Regulation it is an Act which may come under entry 18 of the List II and not entry 23, liven if it may be regarded as an Act passed by the Assam legislature, it cannot be said to be an Act passed in the exercise of its powers under entry 23 of List II.

in the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. Khulua reported in AIR 1947 PC 60 Lord Porter has approved the following observation of Sir Maurice ''Gwver C.J. in the case of AIR 1941 47 (Federal Court)

It must inevitably happen from lime to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere Hence the rule which has been evolved by the Judicial Committee. whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this list or in that.

Thus in order to determine whether the Regulation comes under entry 23 of entry 18 the pith and substance of the Regulation will have to be examined and even assuming that Section 155(f) of the Regulation incidental entrenches upon the field covered by entry 23. it cannot he regarded to be a law enacted under entry 23 and thus even if the power of the Stale Legislature to enact under entry 28 has been taken away by enactment of the Act of 1967-consequent upon the Parliamentary declaration, it cannot be said that the Regulation has been supersede. There is also no inconsistency between the provisions of Section 155(f) of the Regulation and the Act of 1948 and the Act of 1957 as the fields covered by these legislations are diligent. The provision of Section 155 (f) cannot also be said to have been repealed impliedly by the Act of 1948 or the Act of 1957.

It was then contended that so far as the Section 155(f) of the Regulation empowers the Government to make rules for granting of licenses to work mines and oil-wells, it is inconsistent with the provisions of the Act of 1948 and the Act of 1957 which expressly lay down that no mining licenses can be granted except in accordance with the provisions of those Acts and thus lo the extent of this conflict the Acts must prevail over the Regulation.

There are two-fold answers to this contention. Firstly Rule 190 does not deal with the granting of the licenses at all and thus Rule 190 cannot be said to be in conflict with the provisions of the Act of 1948 and the Act of 1957, and secondly Rule 190 has been enacted in pursuance of the general power conferred, which of in that there and Section under State The Slate 155(h) gives Government frame generally carry out Merely, because this Nos. indicated lo rules framed exercise powers (f), it said their validly cannot be upheld if power any other provisions 155 Regulation. heading Chapter VIII Rules 189 190 Regulation are provided for, as follows: Rules framed u/s 155(f) regulating regulating by mining licenses on settled land.

Thus the purpose of these rules is to provide for the entry of the licensees on the lands which arc settled by the Government with the settlement holders Thus the Rules arc essentially to give effect lo the provisions of Section 9 of the Regulation. There is thus no force in the contention that Rule 190 is ultra vires.

The next point urged is that Rule 190 has not been complied with, Rule 190 reads as follows:

190 Where the surface of any land covered by a mining lease is in the occupation of any person other than the lessee-

(i) the lessee shall have the liberty and power to enter upon such lands in the exercise of the rights granted by the lease; provided that without the consent of the occupier, and in the absence of such consent without the written authority of the Deputy Commissioner, he shall not enter into any building, or structure, or into any enclosed yard or garden;

(ii) no surface operations shall be carried on in or upon the site of any dwelling house or in such a manner as to injure any buildings, structures, property or rights of other persons without their consent or, in the absence of such consent, without the written authority of the Deputy Commissioner;

(iii) the Deputy Commissioner shall not grant authority under Clause (i) or (ii) unless he is satisfied that the rights conferred by the lease cannot be exercised except by the grant of such authority;

(iiia) on receipt of an application for authority to enter upon any land or to injure any properly under Clause (i) and (ii), the Deputy Commissioner shall immediately publish at his office and on the land concerned a notice that such authority has been applied for;

(iv) no land which is in the occupation of any person other than the lessee shall be used for surface operations if any other land not so occupied is suitable and available for surface operations:

(v) The lessee shall not without the express sanction of the Deputy Commissioner cut down or injure any limber of trees on such land, but may without such sanction clear away any brushwood or undergrowth which interferes will) the exercise of the rights granted by the lease;

(vi) The Deputy Commissioner may assess or cause to be assessed any damage or injury which may be done by the lessee to the property of the occupier of such land or of any other, person paid by the lessee.

In assessing any damage or injury under this Clause the assessor may leave out of account the value of any buildings erected or improvements made by the occupier of the land after he has granted consent under Clause (i) or (ii) or in the absence of such consent, after the date of the publication of the notice required by Clause (iiia)

We have carefully considered the allegations in the petition and the counter affidavit and in our opinion it cannot be said that he provisions of Rule 190 requiring notice have not been complied with in the present case the order passed and the procedure adopted by the Deputy Commissioner was in compliance with the provisions of Rule 190

The next point urged is that the order is a colourable exercise of power under Rule 190. inasmuch as although the Deputy Commissioner has been granted power to confer an authority on the lessee under upon the land for the purpose of discharging his (sic) under the lease, he has virtually ordered dispossession of the Petitioner and thus he (sic) deprived the Petitioner of his right to properly.

Rule 190(1) gives power to the Deputy Commissioner to issue a written authority in favour of a lessee under which he can enter the land for the exercise of the power conferred on the lessee under the lease Such an authority neither deprives the petitions of his property, nor can it be said to be an unreason able restriction on the power of the Petitioner to hold his property. u/s 9 of the Regulation the landholder acquires a right to the property subject to the right of the Government regarding the quarries and mines, minerals and mineral oils. There is thus no substance in the contention that Rule 190 in so far as it confers a right on the Deputy Commissioner to issue the written authority to the lessee to enter the land is violative of any of the fundamental rights conferred on the Petitioner. The order in the present case has been passed in accordant (sic) with the provisions of rule; 190 It only authorises the lessee to enter upon the land in the exercise of the rights granted by the lease and on the strength of the authority conferred under the order The entry made for the purposes of carrying out the purpose of the lease may sometimes amount lo dispossession of the landholder As pointed out in the counter affidavit. the wire fencing had to be put to protect the machinery of the Oil Company stored there Unless the machinery is brought on the land it will not be possible for the lessee to carry on the operations and if for that purpose the Petitioner is dispossessed from the land, it cannot be said that the exercise of the power by the Deputy Commissioner is a colourable exercise In the result therefore, there is no force in the two Petitions and they are rejected. But the parties will bear their own costs of the petitions.