HIDAYATULLAH, G. - (1.) THE Judgment of the court was delivered by
(2.) THIS judgment will also govern the disposal of Civil Appeals 686 {KantiPrasadPandey v. State of Bihar and Others), 687 (Shri Krishna Chandra Gangopadhya v. Staff of Bihar and Others) and 688 (M/s. Pakur Querries Private Ltd. and Another v. State of Bihar and Others) of 1967. These four appeals have been brought against a common judgment, 1/11/1966, of the High court of Patna and arise out of four petitions under Article 226 of the constitution filed to question the validity of proviso (2) to Section 10 (2) added by Bihar Land Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965), and the operation of the second sub-rule of Rule 20 added on 10/12/1964 by a notification of governor in the Bihar Minor Mineral Concession Rules, 1964. The facts of all the four cases are similar and the same points arise for determination. It is, therefore, sufficient to state the facts in Civil Appeals 685 and 686 as illustrative of the others as well. One Jyoti Prakash Pandey obtained on 23/03/1955 from Babu Bijan Kumar Pandey and Smt. Anila Devi acting for herself and also as legatee under the will of one Baidyanath Pandey, registered leases to quarry stone ballast, boulders and chips from and upon Block Nos. 32, 45/1, 45/2, and 45/3, in tauzi No. 1452, khata No. l in MouzaMalpahari No.89 in Pakur Sub-Division of Santhal Parganas. The leases were to commence from 1/11/1954 and to end on 31/10/1984, that is to say, they were for a total period of 30 years. Jyoti Prakash Pandey was working under the name and style of 'Stone India'. He sold his rights, title and interest by a registered sale-deed on 9/09/1963 to the present appellant. It is admitted that rent under the terms of the original lease was deposited upto September, 1965. On the passing of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) the ex-landlords ceased to have any interest from the date of vesting and in their place the State of Bihar became lessor under Section 10(1) of the Land Reforms Act. The terms of Section 10 were as given below.After the vesting of the estate of the intermediaries, the State of Bihar as the new 1. "10. Subsisting leases of mines and minerals.-(1) Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State government to the holder to the said subsisting lease for the remainder of the terms of that lease, and such holder shall be entitled to retain possession of the lease-hold property. (2) The terms and conditions of the said lease by the Siale Government shall mutatis mutandis be the same as the terms and conditions of the subsisting condition that, if in the opinion of the State government the holder of the lease had not, before the date of the commencement of this Act, done any prospecting or development work, the State government shall be entitled at any time before the expiry of one year from the said date to determine the lease by giving three months' notice in writing : Provided that nothing in this Ss. shall be deemed to prevent any modification being made in the terms and conditions of the said lease in accordance with the provisions of any central Act for the time being in force regulating the modification of existing mining leases. (3) The holder of any such lease of mines and minerals as is referred to in Ss. (1) shall not be entitled to claim any damages from the outgoing proprietor or tenure-holder on the ground that the terms of the lease executed by such proprietor or tenure-holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act. 841 lessor recognised the lease for the quarrying of stones ;for the remaining period and the Deputy Commissisner,Santhal Parganas asked for the rent from the date of vestig to 30/04/1969 at the rate of Rs. 200.00 per year as stated in the original lease. This was by a letter issued from his office on 2/02/1963. On . 10/12/1964 the appellants received a letter which gives the gist of the fafctas on which the present controversy starts and the relevant part may be quoted here : "Government have been pleased to amend the Section 10 of Bihar Land Reforms Act, 1950, and according to which the terms and conditions in regard to leases for minor minerals stand statutarily substituted by the corresponding terms and conditions by the Bihar Minor Mineral Concession Rules, 1964. As a result of this, rent arid royalty etc. in respect of minor minerals in the State irrespective of the date, on which the lease was granted are to be paid by all categories of leases according to the rates given in the aforesaid Rules with effect from 27-10.64". The appellants denied their liability to pay. The government informed them by letter as follows : "This is to inform you that the terms and conditions of your mining lease in so far as they are inconsistent with the Bihar Minor Mineral Concession Rules, 1964, framed by the State government under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, stand substituted by the corresponding terms and conditions prescribed by the Bihar Mineral Concession Rules, 1964, from 27/1/1964. Accordingly, dead rent, royalty and surface rent in addition to the other substitution as per Bihar Mineral Concession Rules, 1964, will be as follows: JUDGEMENT_838_3_1969Html1.htm It is this additional demand and the liability to pay, which is the subject of controversy here. The Bihar government contends that the terms of the original lease have been validly altered by the operation of the second proviso to Section 10(2) of the Bihar Land Reforms Act added first by Ordinance III of 1964 and later incorporated again by the Bihar Land Reforms (Amendment) Act, 1964 (Act 4 of 1965) and the addition of Section 10-A to the Act by the same enactments. The material part of the second section 842 of Act 4 of 1965 is quoted below.Section IO-A provided for the vesting of the interest of leases of mines or minerals which were subject to such leases and need not be read here. The State government also relied upon the Bihar Mineral Concession (First Amendment) Rules, 1964 by which a second sub-rule was added to Rule 20. The twentieth rule, purporting to be framed under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957) was amended on 19/12/1964 and now reads: "Rule 20. (1) Dead rent, royalty and surface rent.-When a lease is granted or renewed- "(a) Dead rent shall be charged at the rates specified in Schedule 1, (b) royalty shall be charged at the rates specified in Schedule 11, and (c) surface rent shall be charged at the rates apecified by the government in the Revenue Department from time to time. (2) On and from the date of commencement of these rules, the provisions of sub-rule (1) shall also apply to leases granted or renewed prior to the date of such commencement and subsisting on such date." The contention is that the amendment of Section 10 of the Bihar Land Reforms Act is ultra vires the Constitution and that Rule 20(2) does not legally entitle the recovery of the dead-rent, royalty, etc. as in the Schedules to the Bihar Minor Mineral Concession Rules, 1964. To understand fully the argument on behalf of the appellants a resume of the legislation on the subject of mines and minerals is necessary. Under the government of India Act, 1935, the subject of Mines and Minerals was covered by Entry 36 of >.he Federal Legislative List I and entry No. 23 of the Provincial Legislative List II of the 7th Schedule. These entries read as follows: "Entry 36. Regulation of mines and oil fields and mineral development to which such regulation and development under a Federal control is declared by Federal law to be expedient in the public interest." "Entry 23. Regulation of miles and oil fields and mineral development subject to the provisions of List I with respect to regulation and development under federal control. When the Indian Independence Act, 1947 was passed the word 'federal' where it occurs for the first time in Entry 36 and in Entry 23 was changed to 'dominion'. The entries are practically repeated in the present Constituion and may be read immediately here : 2. Amendment of Section 10 of Bihar Act XX of 1950In Section 10 of the Bihar Land Reforms Act, 1950 (Bihar Act XX of 1950) (hereinafter referred to as the said act),(a) in Ss. (2), the .following second proviso shall be added, namely : Provided further that the terms and conditions of the said lease in regard to minor minerals as defined in the Mines and Minerals (Regulation and Development) Act, 1957 (Act LXVIIof 1957), shall, in so far as they are inconsistent with the rules made by the State Government under Section 15 of that Act, stand substituted by the corresponding terms and conditions prescribed by those rules and it further ascertainment and settlement of the proceedings for that purpose shall be undertaken by the Collector" ; and (i) after subjection......." 843 Entry 54 of List l--Umon List-reads : "Regulation of mines and minerals 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." Entry 23 of List II State List reads : "Regulation of mines and minerals development subject to the provisions of List I with respect to regulation and development under the control of the Union." The difference between the entries of the government of India Act, 1935 and the present Constitution lies in the removal of oil fields from the entries and the declaration now must be by Parliament. Entry 53 in List I deals with oil fields and mineral resources.
(3.) IN 1948 the Legislative Assembly enacted the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948). It received the assent of the governor-General on 8/09/1948. It was an Act to provide for the regulation of mines and oil fields and for the development of minerals. IN Section 2 of that Act is to be found the declaration contemplated by Entries 36 and 23, 7th Schedule of the government of INdia Act, 1935 That declaration reads as follows : "2. It is hereby declared that it is expedient in the public interest that the central government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided." Section 3 of the Act of 1948 contained definition. There were definitions of 'mine' and 'minerals'. The former meant an excavation for the purpose of searching for or obtaining minerals and included 'an oil-well and the latter included natural gas and petroleum. Section 4 provided that no mining lease would be granted after the commencement of that Act otherwise than in accordance with the rules made under that Act and that a mining lease granted contrary to the provisions would be void and of no effect. Section 5 empowered the central government, by notification to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. IN particular the rules could provide for the manner in which, the minerals or areas in respect of which and the persons by whom, applications for mining leases could bemade and the fees payable, the terms on which and the conditions subject to which, mining leases might be granted, the areas and the period for which any mining lease might be granted and the maximum and minimum rent payable by a lessee, whether the mine was worked or not. Under Section 6 the central Government had power to make rules as respect mineral development. Section 7 then provided as follows : "7.-(1) The central government may, by notification in the official Gazette, make rules for the purpose of modifying or altering the terms and conditions of any mining lease granted prior to the commencement of this Act so as to bring such lease into conformity with the rules made under S. 5 and 6 : Provided that any rules so made which provide for the matters mentioned in clause (c) of Ss. (2) shall not cqme into force until 844 they have been approved, either with or without modifications, by the central Legislature. (2) The rules made under Ss. (1) shall provide (a) for giving previous notice of the notification or alteration proposed to be made thereunder to the lessee, and when the lessor is not the central government, also to the lessor and for affording them an opportunity of showing cause against the proposal ; (b) for the payment of compensation by the party who would be benefited by the proposed modification or alteration to the party whose rights under the existing lease would thereby be adversely affected; (c) for the principles on which, the manner in which and the authority by which the said compensation shall be determined." Section 8 provided that the central government might by notification direct that any power exercisable under that Act might be exercised, subject to such conditions if any, as might be specified by such officer or authority or might be specified in the direction. IN furtherance of the powers conferred the central government framed the Mineral Concession Rules, 1949 and they came into force on the twenty-fifth day of October 1949. These rules for the first time defined minor minerals and after amendments from time to time the term meant: "3(ii) 'minor mineral' means building stone, boulder, shingle, gravel, Chalcedony, pebbles, (used for ball mill purposes only), limeshell, kankar and limestone used for lime burning, murrum, brick-earth (Fuller's earth), Bentonite, ordinary clay, ordinary sand (used for nonindustrial purposes), road metal, reh-matti, state and shale when used for building material." Rule 4 however provided : "4. Exemption.-These rules shall not apply to minor minerals, the extraction of which shall be regulated by such rules as the Provincial government may prescribe." The word 'provincial' was later changed to 'State'. Although some of the Provinces (now States) made Minor Mineral Concession Rules, it is admitted that Bihar government did not frame any such rules. The leases of the appellants' predecessors were granted in 1955 during the subsistence of the Act of 1948 and the Rules of 1949. It is also to be noticed that a fresh declaration was made by Parliament as required by Entry 54 List I-Union List of the 7th Schedule of the Constitution. The existing laws, however, continued. Without a declaration by Parliament the field of legislation might have been open to the State Legislatures under Entry 23 of List II-State List of the Constitution but no law was made except what was enacted by the Bihar Legislature in the Land Reforms Act about vesting of mines in the State and the exergence of the State as a lessor in place of all original lessors.;