Full Judgment Text
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PETITIONER:
STATE OF HARYANA & ANR.
Vs.
RESPONDENT:
CHANAN MAL ETC.
DATE OF JUDGMENT18/03/1976
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1976 AIR 1654 1976 SCR (3) 688
1977 SCC (1) 390
CITATOR INFO :
RF 1980 SC1955 (41)
F 1982 SC 697 (28)
RF 1991 SC1676 (46,47,48,50)
ACT:
Mines and Minerals (Regulation and Development) Act, 67
of 1957- Section 16(1)(b)-Scope of.
Haryana Minerals (Vesting of Rights) Act, 1973-If
repugnant to the provisions of Central Act.
Mandamus-Issue of-Petitioner should first call upon the
authority to discharge legal obligation.
Statement of Objects and Reasons-When could be used in
interpretation
New questions-When could be raised.
HEADNOTE:
On the strength of entries in the (wajib-ul-arz)
(village administration papers) of some villages the State
Government considered itself to be the owner of saltpetre
deposits. By a notification it declared saltpetre as a minor
mineral and auctioned the mines in accordance with the
Punjab Minor Minerals Con Cessions Rules, 1964 made under
the provisions of the Mines and Minerals (Regulation and
Development) Act 67 of 1957. In a writ petition the High
Court held that, unless the mineral deposits were
specifically mentioned in the Wajib-ul-arz of a village, as
having vested in the State, their ownership would still
remain vested in the former proprietors according to the
record of rights. To meet this situation, the State
legislature passed the Haryana Minerals (Vesting of Rights)
Act, 1973. Since the owners of the lands had haphazardly
created lessee rights in contravention of the Punjab Rules,
1964, two notifications were issued with the object of the
conservation as well as of scientific exploitation of
mineral resources. By one notification the State Government
purported to acquire rights to saltpetre in the lands and by
the second it announced that certain saltpetre bearing areas
would be auctioned.
In a writ petition under Art. 226, the High Court held
(i) that in view of the declaration contained in s. 2 of the
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Central Act the field covered by the impugned Act was
already fully occupied by the Central legislation so that
the State Act was inoperative and void for repugnancy and
quashed the two notifications; and (ii) that rights in such
lands had continued to vest in the former owners of estates
despite acquisitions of other parts of their estates.
The respondents in the appeals containded that the
declaration in s. 2 of the Central Act 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 would become unworkable if the provisions of the
State Act were permitted to operate.
While the appeals were pending writ petitions were
filed in this Court under Article 32. The petitioners in the
first batch of writ petitions have asserted rights as
holders of mining lesses granted by persons who had been
entered as proprietors of estates in the record of rights
and that the State under the State Act had wrongly acquired
the right to mineral deposits in their former lands. It was
contended that the effect of the State Act was only to
change the ownership without interfering with the regulation
of leasehold or licensee rights in minerals under the
Central Act.
Allowing the appeals of the State and dismissing the
writ petitions,
^
HELD: (i) The Haryana Minerals (Vesting of Rights) Act.
1973, is valid, as it is not, in any way, repugnant to the
provisions of the Mines and
689
Minerals (Regulation of Development) Act 67 of 1957, made by
Parliament. Ownership rights could be and have been validly
acquired by the State Government under the State Act. [710G]
(ii) No rights are shown by any petitioner to have been
conferred upon him under any lease or licence executed in
accordance with the provisions of the Central Act, but, any
petitioner, either before the High Court or in this Court,
who can establish any such right governed by the provisions
of the Central Act 67 of 1957 may take such proceedings
before an appropriate court, as may still be open to him
under the law, against any such action or Government
notification as is alleged to infringe that right. [710H]
(iii) Any petitioner who applied for a writ or order in
the nature of a mandamus should, in compliance with a well-
known rule of practice, ordinarily, first call upon the
authority concerned to discharge its legal obligation and
show that it had refused or neglected to carry it out within
a reasonable time before applying to a court for such an
order even where the alleged obligation is established.
[711B]
1. (a) It is difficult to sustain the respondents’
contention that the provisions of the Central Act would be
really unworkable by mere change of ownership of land in
which mineral deposits were found. The character of the
State Act has to be judged by the substance and effect of
its provisions and not merely by the purpose given in the
Statement of Objects and Reasons. [706C]
(b) The provisions of the Central Act show that subject
to the overall supervision of the Central Government the
State Government has a sphere of its own powers and can take
legally specified actions under the Central Act and rules.
Thus, the whole field of control and regulation under the
provisions of the Central Act cannot be said to be reserved
for the Central Government. [698B]
(c) The stated objects and reasons of the State Act
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showed that the acquisition was to be made to protect the
mineral potentialities of the land and to ensure their
proper development and exploitation on scientific lines. If
this was the actual purpose behind the Act it did not
materially differ from that which could be said to lie
behind the Central Act. [692E]
(d) The provisions contained in s. 16(1)(b) show that
Parliament itself contemplated state legislation for vesting
of lands containing mineral deposits in the State
Government. It only required that rights to mining granted
in such land should be regulated by the provisions of Act 67
of 1957 as amended in 1972. This feature could only be
explained on the assumption that Parliament did not intend
to trench upon powers of State legislatures under entry 18
of List II read with entry 42 of List III. Again, s. 17 of
the Central Act shows that there was no intention to
interfere with vesting of lands in the States by the
provisions of the Central Act. [707B-C]
(e) There is no force in the contention of the
respondents that the vesting contemplated by s. 16(1)(b) as
it now stands must be of "estates" of proprietors or lands
of tenureholders under some legislation for agrarian reform.
Agrarian 31A of the Constitution is not confined to
legislation for agrarian reform. Agrarian reform is only one
of the possible or alternative objects of such acquisition.
It need not be the exclusive or only purpose of State
legislation contemplated by s. 16(1)(b) of the Central Act.
Power to legislate for the acquisition of the whole of an
estate or ’tenure’ would include the power to legislate for
any part of it. [707 D-E]
Hingir-Rampur Coal Co. Ltd. & Ors. v. The State of
Orissa & Ors.,[1961] 2 S.C.R. 537; State of West Bengal v.
Union of India,[1964] 1 S.C.R. 371; State of Orissa v. M. A.
Tulloch & Co.,[1964] (4) S.C.R. 461 & Baijnath Kedia v. The
State of Bihar,[1970] 2 S.C.R. 100, held inapplicable.
(2) The lessee and licensee rights governed by the
Central Act or rules are not covered by the State Act. It is
clear from s. 3(2) of the State Act that the provisions of
this Act were to be read subject to the provisions made by
or under the Central Act. The State Act did not and could
not upso facto
690
terminate either lessee or licensee rights which were
subsisting on the date when the State Act came into force.
On the other hand. s. 9 of the Central Act 56 of 1972, which
amended s. 16 of the principal Act, made it imperative for
such lessee rights as existed in estates (which had vested
in a State Government) to be brought into conformity with
the Central Act. Therefore, if there were no lessee or
licensee rights of mining in minor minerals on land which
were actually regulated by the provisions of the Central Act
they would continue. [708H]
In the instant case, however. it was not shown how the
notification of auctions of mining rights affected any
subsisting rights of any alleged lessee or licensee. It has
not been shown that any lessee or licensee asked the State
Government to carry out any statutory or contractual
obligation before he invoked the writ jurisdiction of the
High Court or this Court. The essential averments to
disclose subsisting rights or the locus standi of the
petitioners were wanting in these petitions. [709A]
(3) In the second batch of petitions, the only dispute
between the parties related to the vesting of ownership
rights in minor minerals in those plots. The petitioners
have come to this Court as lessees and not as owners. Rights
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of former owners have been validly terminated by the State
Act. It is difficult to make out from these petitions how
any lessee rights acquired by the petitioners themselves
under any law subsisted or were affected by the
notifications. [710E-F]
(4) The statement of objects and reasons is relevant
when the object or purpose of an enactment is in dispute or
uncertain. It can never override the effect which follows
logically from the explicit and unmistakable language of its
substantive provisions. Such effect is the best evidence of
intention. A statement of objects and reasons is not a part
of the statute, and, therefore, it is not even relevant in a
case in which the language of the operative parts of the Act
leaves no room whatsoever, to doubt what was meant by the
legislators. [706D-E]
In the instant case it is not disputed that the object
and effect of the State Act was to acquire proprietary
rights to mineral deposits in "land". Its provisions
however, do not mention leasehold or licensee rights. This
is so because these rights were governed by the Central Act
67 of 1957.
(5) It is not correct to say that any new question was
allowed to be raised simply because the parties were
permitted to place their points of view on the same question
after taking into account the changes brought about in Act
67 of 1957 by Act 56 of 1972 and how earlier decisions of
this Court, which were given before the amendments came into
force, could be at all helpful in deciding the questions.
The Court is bound to take judicial notice of the law as it
exists and not the law as it once was. [706G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 840 to
860 of 1975.
From the Judgments and orders dated 7-5-74, 27-8-74, 2-
9-74 and 10-9-74 of the Punjab and Haryana High Court in
Civil Writ Nos. 1133, 1118, 1180, 1208, 1225, 1226, 1231,
1238, 1277, 1251,1352/74 and 1188, 1198, 1221/74 and L.P.As.
Nos. 395 and 399 of 1974 respectively and
Writ Petitions 1309-1318 and 1371-1373/75
(Under Article 32 of the Constitution of India)
M. C. Bhandare, (In Case 844-860/75) and L. N. Singhvi
(In all Writ Petitions) and R. N. Sachthey for the
Appellant and Respondents.
691
S. Gopal Singh and P. Keshwa Pillai for the Petitioners
in W.P. 1371-73/75.
Harbans Singh Marwah for the Petitioners in W.P. 1371-
73/75.
A. K. Sen, Kapil Sibbal, S. K. Jain and S. S. Khanduja
for the Respondents excepting C.As. 852, 853 and 855/75.
Naunit Lal for the Intervener in C.A. 845/75 Ch. Dhyan
Singh etc.
The Judgment of the Court was delivered by
BEG, J. The seventeen appeals before us by the State
and by the Director of Industries of Haryana, after
certification under Article 133 (1) (a) (b) of the
constitution, are directed against a Judgment of the High
Court of Punjab and Haryana on Writ Petition of owners of
lands and lessees of mineral rights in land seeking reliefs
in the nature of Mandamus to enforce fundamental rights
conferred by Article 31 (2) and to restrain the Government
of Haryana from taking any action to implement two
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notifications void: (i) No. 1217-2-1-B-II-74/7622 dated the
20th February, 1974, and, (ii) No. GIG/SP/Auc/ 1173/3075-C,
dated the 22nd February, 1974, after declaring the Haryana
Minerals (Vesting of Rights) Act, 1973 (hereinafter referred
to as ’the Haryana Act’).
Under the notification of 20th February, 1974, the
State Government purported to acquire rights to Saltpetre, a
minor mineral in the land described in a schedule appended
to the notification issued in exercise of power conferred by
Section 3, sub. section (i) of the Haryana Act. By the
notification of 22nd February, 1974, the State Government
announced to the general public that certain saltpetre
bearing areas in the State of Haryana, mentioned therein,
would be auctioned on the dates given there. The
notifications have not been placed before us. But, from the
averments in the statements on behalf of the State and on
behalf of some of the respondents in the affidavits
supporting their respective cases in proceedings for a stay
of the operation of the High Court’s judgment, it appears
that the intention of the State was to acquire Saltpetre
deposits in lands whose owners had granted mining leases
claimed by petitioners in the High Court to be subsisting.
The auctions advertised were probably of fresh lessee
rights. Whether the auctions were to be of ownership or
lessee rights in lands, the result was that one owner or one
lessee was to be substituted by another in each case as a
result of acquisition and sale. The State was to get the
difference between the price of acquisition and amount
realised on sale of each part sold. The apparent effect of
mere change of owners or lessees was that the State of
Haryana would benefit financially from the acquisitions and
sales, although the object of the Haryana Act was said to
include conservation as well as "scientific exploitation" of
mineral resources. The case of the appellant State also
seemed to be that the owners of lands had "haphazardly"
created lessee rights in contravention of the Punjab Minor
Minerals Concession Rules, 1954, made under the provisions
of the Mines and Minerals (Regulation of Development) Act 67
of 1957 (hereinafter
692
referred to as the Central Act’). Learned Counsel for the
appellant State contended that the Haryana Act was only
meant to supplement and not supplant the Central Act. The
State claimed to be dealing with lessee rights under the
Central Act and not under the Haryana Act at all.
The case of the petitioners in the High Court was:
Firstly, that the Haryana Act was beyond the competence
of the State Legislature inasmuch as the field in which this
Act operated was necessarily occupied already by the
provisions of the Central Act enacted under entry No. 54 of
the Union List (List I) of the Seventh Schedule to the
Constitution which reads as follows:
"54, 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".
Secondly, that the purported acquisition under the
Haryana Act offended the provisions of Article 31(2)
inasmuch as it was neither for a public purpose nor for
adequate compensation, the provision for compensation in the
Act being, according to the petitioners, illusory.
A Division Bench of the High Court allowed the Writ
Petitions and quashed the impugned notifications after
declaring the Act to be ultra-vires. It also held that the
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Haryana Act violated Article 31(2). It found the
compensation provided by the Haryana Act to be grossly low
and illusory, although its view was that, judging from the
statement of reasons and objects of the Haryana Act, a
public purpose was made out. The stated reasons and objects
of the Haryana Act showed that the acquisition was to be
made to protect the mineral potentialities of the land and
to ensure their proper development and exploitation on
scientific lines. If this was the actual purpose behind the
Haryana Act it did not materially differ from that which
could be said to lie behind the Central Act.
The real question, however, was not whether any of the
purposes of the two Acts were common but whether the
provisions of the Central Act so operated as necessarily to
exclude, in carrying out their objects, the operation of the
State Act. The High Court had held that, in view of the
declaration contained in Section 2 of the Central Act, and
decisions of this Court in the Hingir-Rampur Coal Co. Ltd. &
Ors. v. The State of Orissa & Ors., State of West Bengal v.
Union of India, State of Orissa v. M. A. Tulloch & Co., and
Baijnath Kedia v. The State of Bihar, the field covered by
the impugned Act was already fully occupied by the Central
Legislation so that the State Act had to be held to be
inoperative and void for repugnancy.
Section 2 of the Central Act lays down:
"It is hereby declared that it is expedient in the
public interest that the Union should take under its
control the
693
regulation of mines and the development of minerals to
the extent hereinafter provided".
Section 3(a) of this Act says:
" ’minerals’ includes all minerals except mineral
oils;"
Section 3(c) reads:
"’mining lease’ means a lease granted for the
purpose of undertaking mining operations, and includes
a sub-lease granted for such purpose";
Section 3(d) enacts:
"’mining operations’ means any operations
undertaken for the purpose of mining any mineral;"
Section 3(e) elucidates:
" ’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";
Section 3 (g) indicates:
"’prospecting licence’ means a licence granted for
the purpose of undertaking prospecting operations;"
Section 3(h) enacts:
"’prospecting operations’ means any operations
under taken for the purpose of exploring locating or
proving mineral deposits;"
Section 3(i) lays down:
"the expressions, ’mine’ and ’owner’, have the
meanings assigned to them in the Mines Act, 1952".
Sections 4 to 9 of the Central Act deal with General
Restrictions on Prospecting and Mining operations. Section 4
indicates that all prospecting and mining operations will be
governed by the Central Act. But, Section 4A, introduced by
Section 2 of the Central Act 56 of 1972, lays down:
"4A(1) Where the Central Government after
consultation with the State Government, is of opinion
that it is expedient in the interest of regulation of
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mines and mineral development so to do, it may request
the State Government to make a premature termination of
a mining lease in respect of any mineral, other than a
minor mineral, and, on receipt of such request, the
State Government shall make an order making a premature
termination of such mining lease and granting a fresh
mining lease in favour of such Government company or
corporation owned or controlled by Government as it may
think fit".
694
Section 5 concerns restrictions on the grant of
prospecting licences or mining leases. It shows that these
will be granted by the State Government and the Central
Government was to give its approval in certain specified
cases only. Section 6 indicates areas for which a
prospecting licence or mining lease or more than one licence
or lease may be granted in any one State. The Central
Government could make exceptions to this rule. Section 7
limits duration of a prospecting licence, which is evidently
to be granted by the State Government, to one year for mica
and two years for other minerals, subject to renewal, and,
in the case of scheduled minerals, subject to approval by
Central Government for each grant or renewal. Similarly,
Section 8 provides periods of grant and renewal of leases by
the State Government. Section 9 deals with Royalties in
respect of mining leases. Section 9A is concerned with the
Dead rent to be paid by the lessee to the State Government
subject to the regulation of it by the Central Government.
Sections 10 to 12 of the Central Act contain procedure
for obtaining prospecting licences or mining leases in land
in which mineral rights vest in the Government. It is true
that it is not specified here in which Government rights to
minerals in any land vest. But, the machinery provided for
applications and for maintaining the registers of
applications for prospecting licences and mining leases
shows that it is the State Government which will be
concerned with this matter subject to the provisions of
Sections 10 to 12 of the Act.
Rules for regulating the grant of prospecting licences
and mining leases are to be made by the Central Government
according to the detailed provisions of Section 13 and
Section 13A. Section 14, however, lays down:
"14. The provisions of Sections 4 to 13
(inclusive) shall not apply to quarry leases, mining
leases, or other mineral concessions in respect of
minor minerals".
Section 15 makes it clear that it is the State Government
which has the power to make rules for regulating the grant
of quarry leases, mining leases, or other mineral
concessions in respect of "minor minerals" and for purposes
connected therewith.
Section 16(1) of the Central Act enacts: "16(1)(a)
All mining leases granted before the commencement of
the Mines and Minerals (Regulation and Development)
Amendment Act, 1972, if in force at such commencement,
shall be brought into conformity with the provisions of
this Act, and the rules made thereunder, within six
months from such commencement, or such further time as
the Central Government may, by general or special
order, specify in this behalf
(b) Where the rights under any mining lease,
granted by the proprietor of an estate or tenure before
the commencement of the Mines and Minerals (Regulation
and Development) Amendment Act, 1972, have vested, on
or
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695
after the 25th day of October, 1949, in the State
Government in pursuance of the provisions of any Act of
any Provincial or State Legislature which provides for
the acquisition of estates or tenures or provides for
agrarian reform, such mining lease shall be brought
into conformity with the provisions of this Act and the
rules made thereunder within six months from the
commencement of the Mines and Minerals (Regulation and
Development) Amendment Act, 1972, or within such
further time as the Central Government may, by general
or special order, specify in this behalf".
Section 16(2) provides for rules to be made by the Central
Government to carry out the purposes of Section 16(1).
Special powers of Central Government in respect of
mining operations in certain lands are provided for in
Section 17. Clause (1) of this Section reads:-
"17(1) The provisions of this Section shall apply
in respect of land in which the minerals vest in the
Government of a State or any other person".
Clause (2) of Section 17 provides for undertakings by the
Central Government, in consultation with the State
Government, of prospecting or mining operations "in any area
not already held under any prospecting licence or mining
lease....". Section 17(3) makes the Central Government
liable in such cases to pay the State Government prospecting
fee, royalty, surface rent, or dead rent, as the case may
be, at the same rate at which it would have been payable
under this Act, if such prospecting or mining operations had
been undertaken by a private person under a prospecting
licence or mining lease. Section 17(4) contains powers of
the Central Government, in consultation with the State
Government, to prohibit grant of prospecting or mining
leases in any area specified in a notification.
Section 18, dealing with the development of minerals
enacts:
"18(1) It shall be the duty of the Central
Government to take all such steps as may be necessary
for the conservation and development of minerals in
India, and for that purpose the Central Government may,
by notification in the Official Gazette, make such
rules as it thinks fit.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for all or any of the following matters,
namely:-
(a) the opening of new mines and the regulation
of mining operations in any area;
(b) the regulation of the excavation or
collection of minerals from any mine;
(c) the measures to be taken by owners of mines
for the purpose of beneficiation of ores,
including the provision of suitable
contrivances for such purpose;
696
(d) the development of mineral resources in any
area;
(e) the notification of all new borings and shaft
sinkings and the preservation of bore-hole
records, and specimens of cores of all new
bore-holes;
(f) the regulation of the arrangements for the
storage of minerals and the stocks thereof
that may be kept by any person;
(g) the submission of samples of minerals from
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any mine by the owner thereof and the manner
in which and the authority to which such
samples shall be submitted; and the taking of
samples of any minerals from any mine by the
State Government or any authority specified
by it in that behalf; and
(h) the submission by owners of mines of such
special or periodical returns and reports as
may be specified, and the form in which and
the authority to which such returns and
reports shall be submitted.
(3) All rules made under this section shall be
binding on the Government".
It should be noted that Section 18 set out above
empowers the Central Government to make rules for the
"conservation and development of minerals in any part of
India". The State Government is not even entitled under
Central Act to be consulted about this subject, but it is
bound by the rules made on it by the Central Government. The
term "Government", according to Section 3(23) of the General
Clauses Act, includes both the Central Government and a
State Government.
Section 18A, sub-section (1) inserted by Section 11 of
the Act of 56 of 1972, does, however, require consultation
with the State Government on one matter. It says:
"18.A(1) Where the Central Government is of
opinion that for the conservation and development of
minerals in India, it is necessary to collect as
precise information as possible with regard to any
mineral available in or under any land in relation to
which any prospecting licence or mining lease has been
granted, whether by the State Government or by any
other person, the Central Government may authority or
the Geological Survey of India, or such other authority
or agency as it may specify in this behalf, to carry
out such detailed investigations for the purpose of
obtaining such information as may be necessary:
Provided that in the cases of prospecting licences
or mining leases granted by a State Government, no such
authorisation shall be made except after consultation
with the State Government".
697
The remaining clauses (2) to (6) of Section 18A deal with
the consequences of the authorisation of investigation by
the Central Government and matters connected therewith. The
proviso to clause (6) dealing with the costs of
investigation enacts:-
"Provided that where the State Government or other
person in whom the minerals are vested or the holder of
any prospecting licence or mining lease applies to the
Central Government to furnish to it or him a copy of
the report submitted under sub-section (5), that State
Government or other person or the holder of a
prospecting licence or mining lease, as the case may
be, shall bear such reasonable part of the costs of
investigation as the Central Government may specify in
this behalf and shall, on payment of such part of the
costs of investigation, be entitled to receive from the
Central Government a true copy of the report submitted
to it under sub-section (5)".
Miscellaneous provisions are contained in Sections 19
to 33 of the Central Act. Here, Section 19 lays down:
"19. Any prospecting licence or mining lease
granted renewed or acquired in contravention of the
provisions of this Act or any rules or orders made
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thereunder shall be void and of no effect".
Section 20 enacts:
"20. The provisions of this Act and the rules made
thereunder shall apply in relation to the renewal after
the commencement of this Act of any prospecting licence
or mining lease granted before such commencement as
they apply in relation to the renewal of a prospecting
licence or mining lease granted after such
commencement".
Section 21 provides for penalties for anyone who contravenes
the provisions of Section 4(1) of the Act. Among these
miscellaneous provisions is Section 25 recast by Section 14
of Act 56 of 1972. It lays down that:
"Any rent, royalty, tax, fee or other sum due to
the Government under this Act or the rules made
thereunder or under the terms and conditions of any
prospecting licence or mining lease may, on a
certificate of such officer as may be specified by the
State Government in this behalf by general or special
order, be recovered in the same manner as an arrear of
land revenue".
Section 25, sub-section (2) shows that these dues are to be
specified either by the Act or by the Rules made thereunder
or under the terms and conditions of any prospective licence
or mining lease. The control however, is of officers
appointed by the State Government.
Section 26 provides for delegation of the powers of the
Central Government by notification in the official Gazette
to either the State Government or any officer or authority
either subordinate to the
698
Central Government or the State Government. Section 30 shows
that the orders made by the State Government or other
authority in exercise of powers by or under the Central Act
are revisable by the Central Government. Hence, the
provisions of the Central Act show that, subject to the
overall supervision of the Central Government, the State
Government has a sphere of its own powers and can take
legally specified actions under the Central Act and rules
made thereunder. Thus, the whole field of control and
regulation under the provisions of the Central Act 67 of
1957 cannot be said to be reserved for the Central
Government.
As indicated above, there have been some very
significant changes by the Central Act 56 of 1972. These
seem to us to make it necessary to reconsider the effect of
the declaration contained in Section 2 of the Central Act as
interpreted by the decisions of this Court so far. Before
outlining the provisions of Haryana Act, we may indicate the
position resulting from the four decisions mentioned above
relied upon by Punjab & Haryana High Court.
In Hingir-Rampur Coal Co’s case (supra), the validity
of the Orissa Mining Areas Development Fund Act, 1952, was
questioned on the ground that it authorised the State of
Orissa to impose a cess on the valuation of the minerals.
The State of Orissa had relied upon entries 23 and 66 of the
State List (List II) of the Seventh Schedule. Entry 23 of
List II is:
"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".
And entry 66 of List II is:
"Fees in respect of any of the matters in this
list, but not including fees taken in any court".
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The petitioning Coal Co. had relied on entry 84 of List I of
the Seventh Schedule empowering the Parliament alone to
impose excise duty on tobacco and other manufactured goods
with the exception of Alcoholic liquor, opium, Indian hemp,
and other narcotics. It had also cited, in support of its
case, entry 52 of List I of "Industries, the control of
which by the Union is declared by Parliament by law to be
expedient in the public interest". Furthermore, the Coal
Company relied on entry 54 of List I relating to Mines and
mineral development, already set out above. This Court held
that the imposition of the cess under the State enactment
was really a fee falling within entries 23 and 66 of List II
of the Seventh Schedule. It held that the State Act was
neither hit by entry 54, read with Mines and Minerals
Development Act 3 of 1948, nor by entry 52 of List I. The
decision in that case turned on an interpretation of Article
372 of the Constitution. It was held that a declaration in
the Act of 1948 could not be equated with a declaration made
by the Parliament in a post-Constitution enactment in terms
of entry 54 of List I. It was, therefore, not really a
decision on the effect of Section 2 of the Central Act 67 of
1957.
699
The State of West Bengal v. Union of India (supra) was
the case of a suit filed by the State of West Bengal against
the Union. It was contended, on behalf of West Bengal State,
that the Coal Bearing Areas (Acquisition and Development)
Act, 1957, enacted by Parliament, proposing to acquire
certain coal bearing areas in the State, did not apply to
areas owned by the State itself, and, in the alternative,
that, even if it did so apply to areas owned by the State of
West Bengal, it was beyond the legislative competence of
Parliament because entry 42 in the Concurrent List (List
III) did not authorise an acquisition of property already
vested in the State although this entry in the Concurrent
List merely reads: "acquisition and requisitioning of
property". It was urged there that, without a constitutional
amendment, Parliament could not acquire the property of the
State of West Bengal under the provisions of the impugned
Act. It was held there (at p. 417):
"... the power of the Union to legislate in
respect of property situate in the States even if the
States are regarded qua the union as Sovereign, remains
unrestricted, and the State property is not immune from
its operation. Exercising powers under the diverse
entries which have been referred to earlier, the Union
Parliament could legislate so as to trench upon the
rights of the State in the property vested in them. If
exclusion of State property from the purview of Union
legislation is regarded as implicit in those entries in
List I, it would be difficult if not impossible for the
Union Government to carry out its obligations in
respect of matters of national importance".
Learned Counsel for the appellant State before us has
relied upon the case of State of West Bengal (supra) for
contending that the powers of the State of Haryana to
acquire land are not impaired by the declaration contained
in the Central Act. He cited the rule of construction stated
there as follows (at p. 393):
"Unless a law expressly or by necessary
implication so provides, a State is not bound thereby.
This well recognised rule applies to the interpretation
of the Constitution. There fore, in the absence of any
provision express or necessarily implying that the
property of the State could be acquired by the Union,
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the rights claimed by the Union to legislate for
acquisition of State property must be negatived."
Applying this rule, he contends that the powers of the State
Government to acquire land are left intact by the Central
Act 67 of 1957.
Learned Counsel for the respondent, however, relied on
another passage in the State of West Bengal’s case (supra)
to submit that legislative power for acquisition of minerals
for their development and conservation must be deemed to be
vested in Parliament now even if the mineral resources are
situated in the State. He quoted (at p. 436):-
"By making the requisite declarations under
Entries 54 of List I, the Union Parliament assumed
power to regulate
700
mines and minerals and thereby to deny to all agencies
not under the control of the Union, authority to work
the mines. It could scarcely be imagined that the
Constitution makers while intending to confer an
exclusive power to work mines and minerals under the
control of the Union, still prevented effective
exercise of that power by making it impossible
compulsorily to acquire the land vested in the States
containing minerals. The effective exercise of the
power would depend-if such an argument is accepted-not
upon the exercise of the power to undertake regulation
and control by issuing a notification under Entry 54,
but upon the will of the State in the territory of
which mineral bearing land is situate. Power to
legislate for regulation and development of mines and
minerals under the control of the Union, would by
necessary implication include the power to acquire
mines and minerals. Power to legislate for acquisition
of property vested in the States cannot therefore be
denied to the Parliament if it be exercised
consistently with the protection afforded by Art. 31."
In the two cases discussed above no provision of the
Central Act 67 of 1957 was under consideration by this
Court. Moreover, power to acquire for purposes of
development and regulation has not been exercised by Act 67
of 1957. The existence of power of Parliament to legislate
on this topic as an incident of exercise of legislative
power on another subject is one thing. Its actual exercise
is another. It is difficult to see how the field of
acquisition could become occupied by a Central Act in the
same way as it had been in the West Bengal’s case (supra)
even before Parliament legislates to acquire land in a
State. Atleast until Parliament has so legislated as it was
shewn to have done by the statute considered by this Court
in the case from West Bengal, the field is free foe State
legislation falling under the express provisions of entry 42
of List III.
In State of Orissa v. M. A. Tulloch & Co. (supra) the
provisions of the Central Act 67 of 1957 were considered by
this Court directly. In this case, the legality of certain
demands as fee under the Orissa Act 27 of 1952, the validity
of which had been upheld by this Court in Hingir-Rampur Coal
Co.’s case (supra), came up for consideration again in the
light of the provisions of the Central Act 67 of 1957. It
was contended on behalf of the State of Orissa that the
objects and purposes of the Orissa Act and of the Central
Act were entirely distinct and different so that they could
validly co-exist since neither trespassed into the field of
the other. It was pointed out there that this Court had
indicated, in the Hingir-Rampur Coal Co.’s case (supra)
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that, if the declaration in the 1948 Act relied upon by the
petitioner in that case had been made after our Constitution
became operative, the position would have been different.
Reliance was placed upon the provisions of Section 18 of the
Central Act to hold (at p. 477):
"Repugnancy arises when two enactments both within
the competence of the two Legislatures collide and when
the
701
Constitution expressly or by necessary implication
provides that the enactment of one Legislature has
superiority over the other than to the extent of the
repugnancy the one supersedes the other. But two
enactments may be repugnant to each other even though
obedience to each of them is possible without
disobeying the other. The test of two legislations
containing contradictory provisions is not, however,
the only criterion of repugnancy, for if a competent
legislature with a superior efficacy expressly or
impliedly evinces by its legislation an intention to
cover the whole field, the enactments of the other
legislature whether passed before or after would be
overborne on the ground of repugnance. Where such is
the position, the inconsistency is demonstrated not by
a detailed comparison of provisions of the two statutes
but by the mere existence of the two pieces of
legislation. In the present case, having regard to the
terms of S. 18(1) it appears clear to us that the
intention of Parliament was to cover the entire field
and thus to leave no scope for the argument that until
rules were framed, there was no inconsistency and no
supersession of the State Act".
It was also held there (at p. 478):
"If by reason of the declaration by Parliament the
entire subject-matter of conservation and development
of minerals’ has been taken over for being dealt with
by Parliament, thus depriving the State of the power
which it therefore possessed, it would follow that the
’matter’ in the State List is to the extent of the
declaration, subtracted from the scope and ambit of
Entry 23 of the State List. There would, therefore,
after the Central Act of 1957 be ’no matter in the
List’ to which the fee could be related in order to
render it valid".
In Baijnath Kedia’s case (supra), the proviso (2) to
Section 10(2) of the Bihar Land Reforms (Amendment) Act,
1964 (Bihar Act 4 of 1965) and a sub-rule of Rule 20, added
on December 10, 1964, by a notification of the Governor to
the Bihar Minor Mineral Rules, 1961, came up for
consideration. Under the Bihar Land Reforms Act, 1950, the
former landlords had ceased to have any interest from the
date of vesting so that their rights as lessors under the
mining leases granted by them in their "estates" became
vested in the State of Bihar under Section 19(1) of the Land
Reforms Act; and, by Section 10(2) of that Act, the terms on
which the lands were held on leases between the original
lessors and lessees became binding on the State Government
under the impugned proviso to Section 10(2), amounting to
alteration of the terms of the leases executed by the
original lessors, the former landlords, additional demands
were made upon lessees. The State Government had also relied
upon a sub-rule added to Rule 20 framed under Section 15 of
the Central Act 67 of 1957. This Court, after examining the
relevant provisions of the
702
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Central Act, held, relying on Hingir-Rampur Coal Co.’s case
(supra) and M. A. Tulloch Co.’s case (supra), as follows (at
p. 113):
"The declaration is contained in s. 2 of Act 67 of
1957 and speaks of the taking and the control of the
Central Government the regulation of mines and
development of minerals to the extent provided in the
Act itself. We have thus not to look outside Act 67 of
1957, to determine what is left within the competence
of the State Legislature but have to work it out from
the terms of that Act".
After referring to what was decided in the earlier cases,
this Court said (at p. 114):
"These two cases bind us and apply here. Since the
Bihar State Legislature amended the Land Reforms Act
after the coming into force of Act 67 of 1957, the
declaration in the latter Act would carve out a field
to the extent provided in that Act and to that extent
entry 23 would stand cut down. To sustain the amendment
the State must show that the matter is not covered by
the Central Act. The other side must, of course, show
that the matter is already covered and there is no room
for legislation".
It added (at p. 114-115):
"We have already analysed Act 67 of 1957. The Act
takes over the control of regulation of mines and
development of minerals to the Union; of course, to the
extent provided. It deals with minor minerals
separately from the other minerals. In respect of minor
minerals it provides in s. 14 that ss. 4-13 of the Act
do not apply to prospecting licences and mining leases.
It goes on to state in s. 15 that 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, and that until rules are
made, any rules made by the State Government regulating
the grant of prospecting licences and mining leases in
respect of minor minerals which were in force
immediately before the commencement of the Act would
continue in force. It is admitted that no such rules
were made by the State Government. It follows that the
subject of legislation is covered in respect of minor
minerals by the express words of s. 15(1). Parliament
has undertaken legislation and laid down that
regulation of the grant of prospecting licences and
mining leases in respect of minor minerals and for
purposes connected therewith must be by rules made by
the State Government. Whether the rules are made or not
the topic is covered by Parliamentary legislation and
to that extent the powers of State Legislature are
wanting. Therefore, there is no room for State
Legislation".
703
In Baijnath Kedia’s case (supra), this Court also said (at
p. 116):
"We have already held that the whole of the
legislative field was covered by the Parliamentary
declaration read with provisions of Act 67 of 1957,
particularly s. 15 We have also held that entry 23 of
List II was to that extent cut down by entry 54 of List
I. The whole of the topic of minor minerals became a
Union subject. The Union Parliament allowed rules to be
made but that did not recreate a scope for legislation
at the State level. Therefore, if the old leases were
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to be modified a legislative enactment by Parliament on
the lines of s. 16 of Act 67 of 1957 was necessary. The
place of such a law could not be taken by legislation
by the State Legislature as it purported to do by
enacting the second Proviso to s. 10 of the Land
Reforms Act. It will further be seen that Parliament in
s. 4 of the Act 67 of 1957 created an express bar
although s. 4 was not applicable to minor minerals.
Whether s. 4 was intended to apply to minor minerals as
well or any part of it applies to minor minerals are
questions we cannot consider in view of the clear
declaration in s. 14 of Act 67 of 1957 that the
provisions of ss. 4-13 (inclusive) do not apply.
Therefore, there does not exist any prohibition such as
is to be found in s. 4(1) Proviso in respect of minor
minerals. Although s. 16 applies to minor minerals it
only permits modification of mining leases granted
before October 25, 1949. In regard to leases of minor
minerals executed between this date and December 1964
when Rule 20(1) was enacted, there is no provision of
law which enables the terms of existing leases to be
altered. A mere rule is not sufficient".
Again, referring to the earlier decisions it said (at p.
117):
"On the basis of those rulings we have held that
the entire legislative field in relation to minor
minerals had been withdrawn from the State Legislature.
We have also held that vested rights could only be
taken away by law made by a competent legislature. Mere
rule-making power of the State Government was not able
to reach them. The authority to do so must, therefore,
have emanated from Parliament. The existing provision
related to regulation of leases and matters connected
therewith to be granted in future and not for
alteration of the terms of leases which were in
existence before Act 67 of 1957. For that special
legislative provision was necessary. As no such
parliamentary law had been passed by the second sub-
rule to Rule 20 was ineffective. It could not derive
sustenance from the second Proviso to s. 10(2) of the
Land Reforms Act since that proviso was not validly
enacted."
The question which arises before us now is whether,
possibly as a result of the decision of this Court in
Baijnath Kedia’s case (supra), the Parliament had not
amended the law, as we find it in the present
704
Section 16 of the Act 67 of 1957, as amended by Act 56 of
1972, so as to undo its effect. If that amendment is in
response to the need pointed out in Baijnath Kedia’s case
(supra) would it not cover the provisions of the Haryana Act
now before us ?
The preamble to the Haryana Act states that it is:
"An Act to vest the mineral rights in the State
Govt. and to provide for payment of amount to the
owners of minerals and for other matters connected
therewith."
The crucial section is S. 3 of the Haryana Act which runs as
follows:
"S. 3 Vesting of minerals in State Government.-(1)
The State Government may, from time to time, by
notification, acquire the right to any minerals in any
land and the right to the minerals specified in the
notification shall, from the date of its publication,
vest in the State Government.
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(2) Notwithstanding anything contained in any law
for the time being in force, on the publication of the
notification under sub-section (1), the right to the
minerals in the land specified in the notification
shall vest absolutely in the State Government and the
State Government shall, subject to the provisions of
the Mines and Minerals (Regulation and Development)
Act, 1957, have all the powers necessary for the proper
enjoyment or disposal of such right.
(3) The right to the minerals in the land includes
the right of access to land for the purpose of
prospecting and working mines and for the purposes
subsidiary thereto including the sinking of pits and
shafts, erection of plants and machinery, construction
of roads, stacking of minerals and deposits of refuse,
quarrying and obtaining building and road materials,
using water and taking timber and any other purpose
which the State Government may declare to be subsidiary
to mining.
(4) If the State Government has assigned to any
person its right over any minerals, and if for the
proper enjoyment of such right, it is necessary that
all or any of the powers specified in subsection (2)
and (3) should be exercised, the Collector may, by an
order in writing subject to such conditions and
reservations as he may specify, delegate such powers to
the person to whom the right has been assigned".
Other provisions of the Haryana Act are not material.
Section 1 merely gives the Act its title and Section 2 deals
with definitions. Section 4 relates to compensation. Section
5 provides for references or disputes about compensation to
Civil Courts. Section 6 applies Civil procedure to
compensation proceedings. Section 7 provides for appeals.
Section 8 contains the necessary powers of the State
Government to frame rules. These provisions exhaust the Act.
705
Saltpetre was declared a minor mineral by notification
No. 1(31) 65-MII on 21st January, 1967. Its deposits are
said to have been found in 638 villages of Haryana. It
appears that the State of Haryana considered itself to be
the owner of these deposits on the strength of entries in
the records of rights (Wajib-ul-arz) of these villages and
used to auction them in accordance with the Punjab Minor
Minerals Concession Rules, 1964. But, on 25th May, 1971, the
Punjab & Haryana High Court held on a Writ Petition (C.W.
No. 1221 of 1971), that unless the mineral deposits are
specifically mentioned in the Wajib-ul-arz of a village as
having vested in the State, their ownership would still
remain vested in the former proprietors mentioned as owners
of their lands in a Wajib-ul-arz. As a result of this
decision, the right to Saltpetre deposits was found to be
vested in individual proprietors of their estates and Gram
Panchayats in about 600 out of 638 villages. It is stated
that, in order to meet this situation, the Haryana Act No.
48 of 1973 was framed and passed. The President of India
gave his assent to it on 6th December, 1973. It was thus a
logical corollary of land reforms. Apparently, there was no
conflict between the State and the Union Government on the
policy underlying the Act.
The arguments advanced on behalf of the appellant State
were:
Firstly, that the Central Act does not purport to cover
or operate upon the power to acquire ownership in minerals
which are part of "land". The relevant entry for exercise of
legislative power to acquire property is entry 42 in the
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Concurrent List (List III) of the Seventh Schedule. The
Central Act purports to have been made in exercise of the
power under entry 54 of List I for regulation and
development of mines, whereas the Haryana Act operates in
the distinct and separate field of acquisition of property.
Secondly, minerals being part of "land" in the State,
within the competence of the State Legislature to legislate
upon, under entry 18 of the State List (List II),
legislation falling substantially under this head, read with
entry 23 of the State List and entry 42 of the Concurrent
List (List III), should not be invalidated unless we are
compelled to do so.
Thirdly, entry 54 of List I, set out above would
naturally cover only those parts of the field of
acquisition, in accordance with rules of interpretation
indicated in State of West Bengal’s case (supra), which are
expressly excluded from this special field by the Central
Act. Particularly, as acquisition belongs to a different
head in the concurrent field, on which there is neither a
Central Act for acquiring ownership of mineral deposits nor
any express provision for it in Act 67 of 1957, there could
be no question of the exclusion of the power of the State
Legislature to pass the impugned Act. There was thus no
unavoidable conflict between it and the State Act.
Fourthly, the impugned Act is protected from any
challenge on the ground of inadequacy of compensation or the
unreasonableness of the principles contained in Section 4(1)
of the Haryana Act, as the
706
acquisition of parts of estates of former proprietors of
land falls under Article 31A.
On the other hand, the learned Counsel for the
respondents has urged that the cases before us are covered
completely by the decisions of this Court discussed above,
and, in particular by those in Tulloch Co’s., case (supra)
and Baijnath Kedia’s case (supra). It is urged that, when
acquisition is only a means of conservation or development
of mineral resources, even this field must be held to be
necessarily excluded by the declaration in Section 2 and
other provisions of Central Act 67 of 1957 which will become
unworkable if the provisions of the Haryana Act were
permitted to operate.
It seems difficult to sustain the case that the
provisions of the Central Act would be really unworkable by
mere change of ownership of land in which mineral deposits
are found. We have to judge the character of the Haryana Act
by the substance and effect of its provisions and not merely
by the purpose given in the statement of reasons and objects
behind it. Such statements of reasons are relevant when the
object or purpose of an enactment is in dispute or
uncertain. They can never override the effect which follows
logically from the explicit and unmistakable language of its
substantive provisions. Such effect is the best evidence of
intention. A statement of objects and reasons is not a part
of the statute, and, therefore, not even relevant in a case
in which the language of the operative parts of the Act
leaves no room whatsoever, as it does not in the Haryana
Act, to doubt what was meant by the legislators. It is not
disputed here that the object and effect of the Haryana Act
was to acquire proprietary right to mineral deposits’ in
"land". Its provisions, however, do not mention leasehold or
licensee rights. Obviously, this is so because these rights
are governed by the Central Act 67 of 1957.
As we found nothing in the judgment under appeal or in
the arguments advanced by either side to indicate that the
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effect of Act 56 of 1972 which had amended Act 67 of 1957
had been specifically noticed, we considered it necessary to
hear further arguments with a view to giving parties an
opportunity of showing us how earlier decisions, when the
provisions introduced by Act 56 of 1972 were not there,
could be at all helpful in deciding the question now before
us. One of the objections taken before us, at the further
hearing given to the parties, was that we should not allow a
new point to be argued. We do not think that any new
question was allowed by us to be raised simply because we
have permitted parties to place their points of view on the
same question after taking into account some changes in the
Central Act. Indeed, we are bound to take judicial notice of
the law as it exists after its amendment. We can only apply
the law as it exists and not the law as it once was. No
party could justifiably complain that it was given an
additional opportunity to meet what follows from the amended
law even if the effect of the amendment was not noticed
earlier.
We are particularly impressed by the provisions of
Sections 16 and 17 as they now stand. A glance at section
16(1)(b) shows that the
707
Central Act 67 of 1957 itself contemplates vesting of
lands, which had belonged to any proprietor of an estate or
tenure holder either on or after 25th October, 1949, in a
State Government under a State enactment providing for the
acquisition of estates or tenures in land or for agrarian
reforms. The provisions lay down that mining leases granted
in such land must be brought into conformity with the
amended law introduced by Act 56 of 1972. It seems to us
that this clearly means that Parliament itself contemplated
State legislation for vesting of lands containing mineral
deposits in the State Govt. It only required that rights to
mining granted in such land should be regulated by the
provisions of Act 67 of 1957 as amended. This feature could
only be explained on the assumption that Parliament did not
intend to trench upon powers of State Legislatures under
entry 18 of List II, read with entry 42 of List III. Again,
Section 17 of the Central Act 67 of 1957 shows that there
was no intention to interfere with vesting of lands in the
States by the provisions of the Central Act.
The only answer given on behalf of the respondents to
this contention is that such vesting as it contemplated by
Section 16(1)(b) of the Central Act, as it now stands, must
be of "estates" of proprietors or lands of tenure holders
under some legislation for agrarian reform. We are unable to
find any force in this contention. Article 31 A of the
Constitution is not confined to legislation for agrarian
reform. Agrarian reform is only one of the possible or
alternative objects of such acquisition. It need not be the
exclusive or only purpose of State legislation contemplated
by Section 16(1) (b) of the Central Act. And, power to
legislate for the acquisition of the whole of an estate or
"tenure" would include the power to legislate for any part
of it.
Writ Petition Nos. 1309 to 1318 and 1371 to 1373 of
1975, directed against the provisions of this Act, have also
been placed before us for arguments and appropriate orders.
The petitioners in these cases assert rights as holders of
mining leases granted by persons who had been entered as
proprietors of estates in the records of rights in various
villages. The rights of persons so entered (in a "Wajib-ul-
arz") to mineral deposits in their former lands have been
acquired by the State under the Haryana Act. According to
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the Haryana State, the Act was passed so as to, inter-alia,
change the law as declared by the Punjab & Haryana High
Court in the case reported in AIR 1972 P&H p. 50. According
to the view of the High Court, rights in such lands had
continued to vest in former owners of estates despite
acquisitions of other parts of their "estate". The effect of
the Haryana Act was, it was urged, only to change the
ownership without interfering with the regulation of
leasehold or licensee rights in minerals under the
provisions of the Central Act 67 of 1957. The Haryana Act
expressly states that it operates subject to the overriding
provisions of Act 67 of 1957.
Dr. L. M. Singhvi, appearing on behalf of the State of
Haryana, in the Writ Petitions under Article 32, submits:
Firstly, that the legislative competence of the State
Legislature, under entry 23 of List II is subjected to entry
No. 54 of List I only "to the extent to which"
708
Parliament chooses to take upon itself the regulation of
mines and minerals and no more. Secondly, in arriving at a
decision on the extent to which Parliament has removed
regulation and development of mines from State control,
strict construction ought to be adopted so that, without a
specific and clear declaration by Parliament, ousting the
power of State Legislature to deal with vesting of land in
the State Government, it should not be assumed that the
legislative power of the State to acquire what is "land" had
been taken away. Thirdly, Parliament having legislated
specifically only in order to regulate the grant of mining
leases and concessions, irrespective of the ownership of the
lands in which mining leases and concessions are granted,
the clear legislative intent of Parliament, gathered from
the Central Act 67 of 1957 itself, also was to exclude the
topic of acquisition of ownership and other rights in land,
apart from those of holders of mining leases and licences,
from its purview. Fourthly, the majority view in the State
of West Bengal’s case (supra) should be read in the context
of the particular Act considered there under which the Union
Govt. had been given powers of acquiring lands belonging to
the State of West Bengal. No such Central Act is before us
for interpretation. Even if the power was vested in the
Parliament to acquire land as an incident of regulation and
development of minerals, that power not having been
exercised at all by Act is of 1957, it was not permissible
to assume any conflict between the Central Act 67 of 1957
and the Haryana Act. Fifthly, D. M. Collieries & Industries
Ltd. v. Commissioner Burdwan Division, following 66 C.W.N.
p. 304=AIR 1960 Cal. 646, could be relied upon to urge that
States had not lost their legislative competence altogether
to acquire lands in which mineral rights could be granted.
Examples of such acquisitions were: section 10 of the Bihar
Land Reforms Act, 1950, Section 5(2) of the West Bengal
Estate Acquisition Act, 1953 (as amended by Act 22 of 1964)
Coal Bearing Areas (Acquisition and Development) Act, 1957:
Coaking Coal Mines (Nationalisation) Act 1972, and Coal
Mines, (Nationalisation) Act, 1973. In any case, until
Parliament legislates to acquire ownership of mineral
deposits in a State, this field cannot be said to be
occupied merely because of the declaration in Act 67 of 1957
which contains nothing whatsoever about the ownership of
minerals. Sixthly, the provisions of Act 67 of 1957 also
show that the power of granting leases and concessions in
respect of mineral deposits is left largely to State
Government.
There is, however, one argument advanced on behalf of
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holders of leases or licences of mining rights which must be
upheld. It is that lessee and licensee rights, governed by
the provisions of Act 67 of 1957 or rules made thereunder,
are not covered by the Haryana Act. It is clear from Section
3(2) of the Haryana Act itself that the provisions of this
Act are to be read subject to the provisions made by or
under the Central Act. Moreover, the Haryana Act does not
and cannot ipso facto terminate either lessee or licensee
rights which were subsisting on the date when the Haryana
Act came into force. On the other hand, section 9 of the
Central Act
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56 of 1972, which amended section 16 of the Principal Act
(Central Act 67 of 1957), made it imperative for such lessee
rights as existed in estates, (which had vested in a State
Government) to be brought into conformity with the Central
Act. Obviously, therefore, if there are any lessee or
licensee rights of mining in minor minerals on land which
were actually regulated by the provisions of the Central Act
67 of 1957, they will continue. Although, this is a legally
correct contention, it was not shewn to us how the
notification of auctions of mining rights affected any
subsisting rights of any alleged lessee or licensee. The
facts of no individual case were placed before us. We do not
know which respondent in the appeal or which petitioner in
Writ Petitions before us has any subsisting rights governed
by any of the provisions of the Central Act or rules made
thereunder. It has also not been shewn to us that any lessee
or licensee asked the State Government to carry out any
statutory or contractual obligation before he invoked the
Writ jurisdiction of the High Court or of this Court. Thus,
essential averments to disclose subsisting rights or the
locus standi of the petitioners are wanting here.
In Writ Petitions No. 1309-1318 and 1371-1373 of 1975,
the petitioners only assert that they are lessees of minor
minerals holding rights under registered leases executed by
the owners of minor minerals. But, they do not state whether
their leases are governed by or have been brought into
conformity with the provisions of the Central Act.
Annexure ’A’ is the notification, dated 10th April,
1974, assailed by petitioner in this Court. Its purpose is
stated in the following terms:
"In exercise of powers conferred by sub-section
(1) of Section 3 of the Haryana Mineral (Vesting of
Rights) Act, 1973, the Governor of Haryana hereby
acquires the right to the minerals, mentioned in column
6 of the schedule given below in the land specified in
column 5 thereof".
The schedule contains a large number of khasra numbers of
plots in various villages covered by the notification
Another notification of 11th September, 1975,
challenged by the petitioners in this Court says:
’It is hereby notified for the general public that
Minor Mineral quarries of Gurgaon District, as per
particulars given below, will be put to auction on 1-
10-1975 in the office of Senior-District Industries
Officer, Faridabad, at 10 A.M.".
Thereafter, follows the names of 139 villages in Tehsil
Gurgaon under the heading "Name of Quarry". Under the next
heading. "Name of the Minor Mineral", occur the words "Road
metal and stone."
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The notification then proceeds to say:
"The terms and conditions of the auction are given
below :-
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(i) Each bidder shall be required to deposit a
sum of Rs. 200 in cash as earnest money, with
the Presiding Officer before participating in
the auction.
(ii) The period of contract shall commence from
the date of execution of the agreement to the
21st March, 1977.
(iii)Other terms and conditions of auction shall
be the same as contained in the Punjab Minor
Mineral Concession Rules, 1964, as adopted by
Haryana Government.
(iv) The highest bidder shall be entitled to
obtain short term permits from the date of
auction till the date of acceptance of his
bid by the competent authority. Therefore, he
will not have any right to revoke his
officer.
Any other information he had from the Senior District
Industries Officer. Faridabad.
(B. L. MITTAL)
Director of Industries, Haryana".
Some of the numbers given in the first notification
correspond with the number of plots in respect of which the
petitioners allege to be lease-holders. A perusal of the
petitions and the counter-affidavits filed in reply on
behalf of the State of Haryana shows that the only dispute
between the parties relates to the vesting of ownership
rights in a minor mineral in these plots. But, the
petitioners have come before us as lessees and not as
owners. Rights of former owners have been validity
terminated by the Haryana Act. We are unable to make out,
from these petitions how any lessee rights acquired by the
petitioners themselves, under any law subsist or are
affected by the notifications mentioned above.
We proceed to record our conclusions as follows:
1. The Haryana Minerals (Vesting of Rights) Act, 1973,
is valid, as it is not, in any way, repugnant to the
provisions of the Mines and Minerals (Regulation of
Development) Act 67 of 1957, made by Parliament. Ownership
rights could be and have been validity acquired by the
Haryana Govt. under the Haryana Act.
2. No rights are shewn by any petitioner before us to
have been conferred upon him under any lease or licence
executed or brought in accordance with the provision of the
Central Act 67 of 1957, but, any petitioner, either before
the High Court or in this Court, now before us, who can
establish any such right governed by the provisions of the
Central Act 67 of 1957 may take such proceedings before an
appropriate Court, if so advised, as may still be open to
him under the law, against any such action or Govt.
notification as
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is alleged to infringe that right. We are unable to find any
such right in any writ petition, as framed, now before us.
3. Any petitioner who applies for a writ or order in
the nature of a mandamus should, in compliance with a well
known rule of practice, ordinarily, first call upon the
authority concerned to discharge its legal obligation and
show that it has refused or neglected to carry it out within
a reasonable time before applying to a Court for such an
order even where the alleged obligation is established.
Accordingly, subject to the observations made above, we
allow Civil Appeals Nos. 844-860 of 1975, and set aside the
judgment and orders of the High Court of Punjab and Haryana
and dismiss the Writ petitions.
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We also dismiss the Writ Petitions Nos. 1309-1318 and
1371-1373 of 1975, subject to the observations made above,
filed in this Court.
Parties will bear their own costs.
P.B.R. Appeal allowed &
Petitions dismissed.
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