- (1.) The petitioners in these petitions have questioned the validity of a notification issued by the Government of Gujarat on June 26, 1985 in exercise of its powers conferred by Sec. 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957), hereinafter referred to as the Act, amending the Gujarat Minor Mineral Rules 1966, hereinafter referred to as the Rules, with effect from 1-7-1985 substituting the original Rule 21 of the Rules by a new Rule which reads as follows : "21. Rate of Royalty : The holder of quarry lease or any other mineral concession granted under these rules shall pay royalty in respect of minor minerals, specified in column 2 of the Schedule, removed or consumed by him or by his agent, manager, employee, contractor or sub lease from the leased area at the rates respectively specified against them in column 3 of the said Schedule. Provided that :- (i) the holder of a Parwana granted under these Rules shall pay royalty at the rate of fifty per cent of the rate of royalty specified in the said Schedule. (ii) no royalty shall be charged from Nimbhadas of village Potters who manufacture upto one lakh bricks per year. (iii) no royalty shall be charged from Nimbhadas of village Potters if their annual production is not exceeding two lakhs bricks and they supply at least one lakh bricks to the Rural Housing Board of Panchayats. (iv) Royalty shall be recoverable in whole rupees, fraction fifty paise and above to be rounded upwards to a whole rupee and fraction below fifty paise shall be ignored." and fixing the royalty payable by the lessees in respect of minor minerals known as Black Trap and Hard Murrum at Rs. 7 per metric tonne by amending Schedule of the Rules which was being levied at Rs. 4 till the date of the said amendment.
(2.) In order to understand the case of the petitioners it is necessary to set out some other provisions of law governing the case. The Act was passed in the year 1957 by Parliament to provide for the regulation of mines and development of minerals under the control of the Union and it was made applicable to the whole of India. Under Sec. 3A of the Act the word 'minerals' is defined as including all minerals except mineral oils. Clause (e) of the said Section defines 'minor minerals' as 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. It is not disputed that Black Trap and Hard Murrum are notified as minor minerals. The Act has made provision with regard to the issue of prospecting licences and mining leases in respect of various kinds of minerals other than minor minerals and the procedure to be followed in that connection in the matter of issue of prospecting licences and mining leases. Section 9 of the Act empowers the Central Government to levy royalty in respect of the minerals which are won by the mining lease holders under the Act at the rates prescribed in the Second Schedule to the Act. It empowers the Central Government to enhance or reduce the rate of royalty prescribed by the Second Schedule in respect of any mineral subject to the condition that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years. Section 14 of the Act provides that Secs. 3 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals. Section 15 as it stood during the relevant time read thus : "15. (1) The State Government may, by notification in the Official Gazette, 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. (2) Until rules are made under sub-sec. (1), any rules made by a State Government regulating the grant of (quarry leases, mining leases or other mineral concessions) in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force. (3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-sec. (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removd or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals; Provided that the State Government shall not enhance the rate of royalty in respect of any minor mineral for more than once during any period of three years."
(3.) It is seen from Sec. 15 that the State Government is empowered to make rules for regulating the grant of quarry leases, mining leases or ther mineral concessions in respect of minor minerals and for purposes connected therewith. In exercise of the said power under Sec. 15 the Government of Gujarat promulgated the Gujarat Minor and Minerals Rules, 1966 which are referred to as the Rules as stated above. Rule 21 of the Rules provide for the determination of the rate of royalty payable in respect of minor minerals. The original Rule 21 was substituted by new Rule 21 by the issue of impugned notification on 26-6-1985 which provides that a holder of a quarry lease or any other mineral concession granted under the Rules shall pay royalty in respect of minor minerals provided in column 2 of the Schedule, removed or consumed by him or by his agent, manager, employee, contractor or sublessee from the leased area at the rates Specified in column 3 of the said Schedule. It is under this notification the rate of royalty in respect of Black Trap and Hard Murrum was increased from Rs. 4 to Rs. 7 per metric tonne. The Rule also provides that the holder of a Parwana granted under the Rules shall pay royalty at the rate of 50 per cent of the rate of royalty specified in the said Schedule and that no royalty shall be charged from Nimbhadas of village Potters who manufacture upto one lakh bricks per year. It further provides that no royalty shall be charged from Nimbhadas of village Potters if the annual production is not exceeding two lakh bricks and they supply at least one lakh bricks to the Rural Housing Board or Panchayats. The validity of Rule 21 as it existed prior to the issue of the impugned notification was considered in D. K. Trivedi & Sons & Ors. v. State of Gujarat & Ors., 1986 (1) SCR 479 : [1986 (2) GLR 1250 (SC)] as under the said Rule the royalty payable in respect of some of the minor minerals had been enhanced. Originally all lessees had to pay a a minimum dead rent in respect of the area covered by a minor mineral lease issued in respect of any minor mineral or the royalty prescribed in respect of quantity of minor minerals owned by him, which-ever was higher. The history of the legislation of the Rule from the year 1966 is set out in detail in the said decision. Hence it is not necessary to refer to it in detail here. By the said decision the constitutionality of Sec. 15 of the Act and the validity of a notification issued on June 18, 1981 under which the rate of royalty had been raised was upheld and the writ petitions in which the said validity had been questioned were dismissed. That decision was rendered on March 5, 1986. During the pendency of the said petitions in the High Court the impugned notification was issued increasing the royalty payable in respect of Black Trap and Hard Murrum from Rs. 4 to Rs. 7. In these petitions the impugned notification issued in the year 1985 is questioned. Since many of the contention raised by the parties in respect of the constitutionality of Sec. 15 of the Act and the validity of Rules made thereunder had been considered and the contentions urged by the petitioners against the said rule in these petitions had been rejected, in the present case the petitioners have confined their case only to the following points which according to them had not been considered in the said decision.;