Beli Ram vs State of Himachal Pradesh and Others

R.S. Pathak, C.J.—The petitioner is a lessee from a private owner of certain parcels of land. The Respondents, who are the officers of the State of Himachal Pradesh, detected the petitioner excavating clay from the land and called upon him by a letter dated January 11, 1971, to apply for a permit in order to excavate the clay and to pay royalty for the clay excavated by him. Although the letter informed him that the Inspector would meet the petitioner on January 14, 1971, it was issued on January 30, 1971. Subsequently a fresh letter dated February 3, 1971, was issued to the petitioner enclosing a copy of the earlier letter dated January 11,1971, and it required the petitioner to disclose documentary evidence indicating the amount of the clay excavated in order that the royalty payable thereon may be computed. It appears that criminal proceedings have been instituted before a Sub-Divisional Magistrate u/s 23 of the Mines and Minerals (Regulation and Development) Act, 1957, read with Rule 53 (2) of the Himachal Pradesh Minor Minerals (Concession) Revised Rules, 1971, and those proceedings are pending. The petitioner prays for relief against the directions of the Respondents calling upon him to apply for a permit and to pay royalty in respect of clay excavated. It is also prayed that the criminal proceedings pending against the petitioner be quashed.

The following points alone have been pressed before us. They are dealt with seriatim.

It is urged that Section 4 of the Mines and Minerals (Regulation and Development) Act, 1957, prohibits the mining of a mineral without a mining lease, but Section 14 of the Act declares that Section 4 does not apply to minor minerals. It is pointed out that as by the definition of the expression "minor minerals" in Section 3(e) of the Act clay is a minor mineral there is no prohibition against the excavation of clay under the Act. It is said that although Section 15 of the Act empowers a State Government to make rules regulating the mining of minor minerals, there was no such rule on January 14, 1971, containing such prohibition. It is contended that inasmuch as the only statutory provision, Section 4, which prohibits the mining of a mineral in the absence of a mining lease does not apply to a minor mineral the policy of the Act must be taken to be that no mining lease is required in respect of the excavation of a minor mineral.

The contention has no substance. Section 4, it is true, applies to minerals other than minor minerals. That is clear from Section 14. But Section 15 specifically empowers the State Government to make rules regulating the mining of minor minerals. Pursuant to that power, the Himachal Pradesh Minor Minerals (Concession) Rules, 1966, were framed, and Rule 3 thereof specifically prohibits the mining of a mineral without obtaning a mining lease. It is clear that if the Himachal Pradesh Government has power to make provision requiring the obtaining of a mining lease before excavating a minor mineral- and it has not been suggested by learned Counsel for the petitioner that the Himachal Pradesh Government had no power to apply such a rule in respect of the specific parcels of land from which the petitioner is excavating the clay-the petitioner violated the prohibition contained in Rule 3 when he excavated clay without obtaining a mining lease.

There is no force in the further contention of the petitioner that because the prohibition contained in Section 4 of the Act is not directed against the excavation of minor minerals we must assume that no such prohibition was intended at all by the Act against such excavation, and therefore the Rules of 1966 and the corresponding Rules of 1971 are ultra vires. It is apparent from the scheme incorporated in the Act that Parliament itself dealt directly through express provisions contained in the Act with minerals other than minor minerals. The regulation of the mining of minor minerals was left to the appropriate State Government. The challenge to the validity of the Rules of 1966 and of the Rules of 1971 cannot be sustained.

The second contention of the petitioner is that when Section 15 empowers the State Government to frame rules regulating the mining of minor minerals, it does not empower the State Government to create an obligation on a person to pay royalty. This contention is also without substance. The expression "regulate" is used in Entry 54 of List I of Schedule VII of the Constitution. The Entry reads:-

Regulation of mines and mineral development 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 Section 2 of the Act contains the declaration referred to in the Entry. It is well settled that an expression used in the legislative lists must be construed so as to give it the widest reasonable amplitude. That proposition was laid down by the Federal Court in the matter of the AIR 1938 1 (Federal Court) and by the Supreme Court in Harakchand Ratanchand Banthia and Others Vs. Union of India (UOI) and Others, . In my opinion, the expression "regulate" in Entry No. 54 is wide enough to include a provision prohibiting the excavation of a mineral without obtaining a mining lease. The activity of excavation is not prohibited absolutely; it is made subject to a certain pre-requisite and that is that a mining lease be taken for the purpose. One of the terms and conditions in a mining lease can be the payment of royalty for excavating and removing the mineral. Payment of royalty is in substance the consideration for the right to excavate and remove the mineral. I am unable to hold that the expression "regulate" should be so confined as to exclude such a condition. If that meaning can be attributed to the expression "regulate" in Entry 54 of List I of Schedule VII, plainly the same meaning can be attributed to the expression in Section 15 of the Act. Accordingly, I hold that Section 15 empowers a State Government to frame rules requiring payment of royalty in respect of mineral excavated and removed by a lessee under a mining lease. It is immaterial that Section 15 itself does not mention that the State Government may require payment of royalty. It is also immaterial that the power to fix the measure of the royalty is not expressly mentioned in that Section. All that power is comprehended in the expression "regulate'''' used in Section 15, and rules may be made accordingly under that section.

The third contention is that the petitioner is excavating the clay under an agreement with the landowner and the Government has no right to demand royalty from him. It has not been established before us that the right to the clay vests in the landowner and not in the State. There must be clear and definite material on the record from which a conclusion can be drawn in favour of the petitioner on that point. Such material is lacking in the present case.

The fourth contention is that the petitioner is not liable to pay royalty because no mining lease has been obtained by him and in the absence of a mining lease there is no liability to pay royalty. The objection is premature. No demand for royalty or recovery proceeding therefore has been shown to have been initiated yet by the Respondents. All that has been required of the petitioner is that he should apply for a mining lease and should place material before the Respondents for computing the royalty in respect of the clay excavated. There is no present liability to pay royalty.

It is also contended by the petitioner that the criminal proceedings pending before the Sub-Divisional Magistrate are being . taken on the footing that the petitioner has contravened the Himachal Pradesh Minor Minerals (Concession) Revised Rules, 1971, and, it is pointed out, inasmuch as the Rules of 1971 had not yet come into force on January 14, 1971, there is no case at all of violating the rules of 1971. That contention is easily disposed of. If Rule 3 of the Rules of 1966 referred to above are violated, an offence is committed by reason of Rule 57 of those Rules. Now Rule 60 of the Rules of 1971 declares that anything done under the Rules of 1966, notwithstanding their repeal by the Rules of 1971, shall be deemed to have been done under the Rules of 1971. Rule 53 of the Rules of 1971 correspond to Rules 3 and 57 of the Rules of 1966. It is apparent that an offence committed under the Rules of 1966 can be deemed, by virtue of Rule 60 of the Rules of 1971, to be an offence committed under the Rules of 1971. The contention of the petitioner in this regard also has no force.

Finally, it is contended by the petitioner that the letter dated January 11, 197l, intimating that the Inspector would meet the petitioner on January 14, 1971, for the purpose of examining the account books of the petitioner was ineffective inasmuch as it was not issued until January 30, 1971, and therefore no question arose of complying with that letter. The facts show that a subsequent letter dated February 3, 1971, was issued giving the petitioner further time to comply with the terms of the earlier letter. The Inspector may have visited the place on January 14, 1971, but a further opportunity was given to the petitioner to take action in compliance with what was required of him by the earlier letter. There is no substance in the complaint made by the petitioner.

No other ground has been pressed before us. The petitioner faintly urged that the Rules of 1966 and of 1971 were beyond the legislative competence of the State Government, but beyond what has been set out above no argument on the merits in support of that contention was addressed to us.

The petition is dismissed with costs.

C.R. Thakur, J:

I agree.