- (1.) THIS matter has been referred to this Full Bench by Hon'ble the Chief Justice on account of the reference made by the learned Single Judge by his order dated 2.2.1982, whereby the learned Single Judge has referred the following four questions for consideration of the Full Bench, which read as under : - "1. Whether under the Rules of 1977 in the lease of brick-earth, establishment of brick-kiln is also implied and if so whether subject matter of allotment of sites for establishment of brick-kilns is covered by the Rules of 1977? 2. Whether the Rajasthan Colonisation Project Areas Brick Kiln (lease) Conditions, 1966 only deal with the allotment of sites for the establishment of brick-kiln, a subject covered by Entry 18 of the List I of Schedule VII of the Constitution and as such are valid? 3. Whether the Rajasthan Colonisation Project Areas Brick Kim (lease) Conditions, 1966 are beyond the authority of the State Government and as such are ultra vires of its powers? 4. Whether the view of this Court in Shivchand Goyal v. State of Rajasthan (RLW 1967 p.30) that in the lease of brick earth granted under the Rajasthan Minor Mineral Concession Rules, 1977 framed under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 the establishment of brick-kiln is implied is not good law, and if so whether establishment of brick-kiln is a subject not covered by Entry no. 54 of the List I (Union List) of Schedule VII of the Constitution and is covered by Entry 18 of List II of Schedule VII of the Constitution and as such the conditions of 1966 are valid?"
(2.) BEFORE we answer these questions, it will be necessary to refer the law on the subject as well as the brief facts giving rise to this controversy., The petitioners Mohd. Bux & Ahmed Bux filed a writ petition praying that Rule 4(3) of the Rajasthan Minor Mineral Concession Rules, 1977 may be decided unconstitutional and void and be struck down & the Mining Engineer, Bikaner may be directed to proceed with the petitioner's application for grant of the mining lease without a 'No Objection Certificate' from the Colonisation Commissioner and he may be directed to ignore Rule 4(3) of the Minor Mineral Concession Rules, 1977. The petitioners and their father are manufacturers of bricks in Bikaner. The petitioner's father had a mining lease under the Rajasthan Minor Mineral Concession Rules, 1959 for excavating the brick-earth for manufacturing the bricks for the period from 7.2.1973 to 6.2.1978. Before the expiry of this lease, the State Government framed the Rajasthan Minor Mineral Concession Rules, 1977 (referred to hereinafter as 'the Rules of 1977') in exercise of the powers conferred on the State Government by Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957. These Rules superseded the Rajasthan Minor Mineral Concession Rules, 1959. Rule 4(3) of the Rules of 1977 provides that no lease shall be granted or renewed in any area which is a colony within the meaning of the Rajasthan Colonisation Act, 1954 (hereinafter referred to as 'the Act of 1954') unless the applicant produces a 'No Objection Certificate' from the Colonisation Commissioner under the said Act. Prior to the framing of the Rules of 1977, the State Government in exercise of the powers conferred by Section 28 read with sub-section (1) and (2) of the Act of 1954 prescribed conditions named as the Rajasthan Colonisation Project Areas Brick Kiln (Leases) Conditions, 1966 (hereinafter called as 'the Conditions of 1966' ). Under the Conditions of 1966 the brick kilns can be established on a lease granted by the Collector by a public auction. Condition 4 provides for reservation of lands for this purpose. Conditions 6, 7, 8 and 9 provide the procedure for the auction and grant of the lease. Condition 12 provides that immediately on the grant of a lease by the Collector under Condition 10 the Collector shall inform the Mining Department and on receipt of such information from the Collector, the Mining Department shall issue a mining lease for the brick earth under the Minor Mineral Concession Rules valid for a period of lease granted by the Collector. According to these Conditions of 1966 the Deputy Commissioner Colonisation who was conferred with the power of the Collector by the State Government under the Act of 1954 issued a notice dated 29.4.1980 for auctioning certain brick kilns and the petitioners being the highest bidders the auction was knocked down in their favour. The petitioners were asked to deposit l/4th of the bid amount immediately which the petitioners did on 14.7.1980. The remaining amount was asked to be deposited by the Deputy Commissioner Colonisation on 2.8.1980. But the Deputy Commissioner Colonisation did not intimate the Mining Department for grant of lease despite that he accepted full payment of the auction bid from the petitioner. It is submitted that the petitioners approached the Deputy Commissioner to intimate the Mining Department to grant lease in favour of the petitioners but they were informed that the Commissioner Colonisation has directed to re-auction the plots as per the Conditions. Therefore, the Deputy Commissioner Colonisation by the order dated 13.1.1981 finally refused to sent intimation to the Mining Department for granting the lease. The Deputy Commissioner Colonisation issued another notice for holding fresh auction. Therefore, under these circumstances, the petitioners have approached this Court by filing the present writ petition challenging the validity of Rule 4(3) of the Rules of 1977. In this context, when the matter was argued before the learned Single Judge, the learned Single Judge felt that in view of the amendment in the definition of land as defined under section 2(v) read with S.7(l) of the Act of 1954, the matter requires reconsideration. He also felt that the Rules of 1977 do not include permission to establish brick kilns for manufacture of bricks. In order to answer the controversy involved in this case, it will be necessary/relevant to refer to the legal position regarding the minerals. Entry 54 of List I of Seventh Schedule deals with the regulation of minerals development, which reads as under : - "54. Regulation of 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."
(3.) AS per this entry it is the Parliament which has to regulate the development of the minerals and the Parliament has to declare the law for regulation and development of such minerals. In the purported exercise of this power the Parliament has framed the Mines and Minerals (Regulation and Development) Act, 1957 (referred to hereinafter as 'the Act of 1957 ). Our attention was also drawn to Entry No. 18 of the List II (i.e. State List) of the Seventh Schedule, which reads as under : - "18. Land, that is to say, rights in or over the land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans, colonisation." Section 15 of the Act of 1957 confers a power on the State Government to frame rules in respect of minor minerals. The 'minor minerals' has been defined in Section 2(e) of the Act of 1957 which reads as under : - "(e) "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;" As per the definition of minor minerals the ordinary sand which is being used for manufacture of bricks is a minor mineral and, therefore, the State Government is competent to regulate its development by framing the rules in the purported exercise of power conferred on the State Government by virtue of Section 15 of the Act of 1957. In the purported exercise of this power the State Government first framed the rules known as the Rajasthan Minor Mineral Concession Rules, 1959. These rules were subsequently superseded by another rules known as the Rajasthan Minor Mineral Concession Rules, 1977 and again now the State Government has framed the rules known as the Rajasthan Minor Mineral Concession Rules, 1986. Since we are concerned in the present matter with the Rules of 1977, therefore, we will refer to the provisions of the Rules of 1977 to answer the questions referred to us by this reference. ;