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M.F. Paniker Vs. Piraji Moraji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Ref. No. 6 of 1975
Judge
Reported inAIR1976Guj190; (1976)0GLR312
ActsMines and Minerals (Regulation and Development) Act, 1957 - Sections 2 and 15; Constitution of India
AppellantM.F. Paniker
RespondentPiraji Moraji and ors.
Advocates: A.J. Patel, Public Prosecutor
Cases ReferredIn Baijnath v. State of Bihar
Excerpt:
.....magistrate that the parliament has not thought it fit to take over control of regulation of minor minerals and development of minor minerals and when that is so, parliament cannot make any provisions like those contained in section 15 of the act section 15 makes it, very clear that regulation of mines and minor minerals is left to the unguided discretion of state government so it means that with respect to 'minor minerals the control of the union is not thought expedient and hence by virtue of entry 23 of list ii, it is only the state government which is the competent authority to make laws with respect to minor minerals and in that case section 15 of the act appeared to him to be beyond the competence of the parliament and hence section 15 appeared to him to be invalid. 5. as..........magistrate that the parliament has not thought it fit to take over control of regulation of minor minerals and development of minor minerals and when that is so, parliament cannot make any provisions like those contained in section 15 of the act section 15 makes it, very clear that regulation of mines and minor minerals is left to the unguided discretion of state government so it means that with respect to 'minor minerals the control of the union is not thought expedient and hence by virtue of entry 23 of list ii, it is only the state government which is the competent authority to make laws with respect to minor minerals and in that case section 15 of the act appeared to him to be beyond the competence of the parliament and hence section 15 appeared to him to be invalid.2. in.....
Judgment:

Divan, C.J.

1. The Metropolitan Magistrate, 11th Court, Ahmedabad, has made this Reference as he formed the opinion that Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 is invalid and under the relevant Section of the Code of Criminal Procedure, this Reference has been made. The learned Magistrate has considered Entry 23 of the Second List, that is, the State List, of the Seventh Schedule of the Constitution and also Entry 54 of List I of the same Schedule and he has observed that under Entry 54, Parliament can assume power to make laws with respect to regulation of mines and mineral development, only when Parliament declares by law that such regulation and development under the control of the Union is declared by Parliament to be expedient in the public interest. Section 2 of the said Act reads -

'It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.'

According to the learned Magistrate the Parliament has not separately declared by law the extent of control under Entry 54 of List I of the Seventh Schedule and, therefore, we have to go to the Act and read the Act as a whole to find out the extent of control prescribed for the regulation of mines and development of minerals in order to know the power of Parliament in respect of Section 15 of the Act. It appeared to the learned Magistrate that the Parliament has not thought it fit to take over control of regulation of minor minerals and development of minor minerals and when that is so, Parliament cannot make any provisions like those contained in Section 15 of the Act Section 15 makes it, very clear that regulation of mines and minor minerals is left to the unguided discretion of State Government So it means that with respect to 'minor minerals the control of the Union is not thought expedient and hence by virtue of Entry 23 of List II, it is only the State Government which is the competent authority to make laws with respect to minor minerals and in that case Section 15 of the Act appeared to him to be beyond the competence of the Parliament and hence Section 15 appeared to him to be invalid.

2. In order to appreciate the real controversy in this case, we must, first refer to Entry 54 which is in these terms:

'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.'

Entry 23 of List 11 in the Seventh Schedule is as follows:

'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.'

Section 2 of the Act says -

'It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.'

Thus it is obvious that by Section 2 it is declared by Parliament by law that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the rest of the Act

3. In State of Orissa v. M. A. Tulloch & Co., AIR 1964 SC 1284, N. Rajagopala Ayyangar.J., delivering the judgment of the Supreme Court has observed -

'It does not need much argument to realise that to the extent to which the Union Government had taken under 'its control' 'the regulation and development of minerals' so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of that 'control' be superseded or be rendered ineffective for here we have a case not of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made.'

In Baijnath v. State of Bihar, AIR 1,970 SC 1436, the question again came up be-. fore the Supreme Court. Hidayatullah C. J., delivering the judgment of the Supreme Court has pointed out in paragraph 14 -

'It is open to Parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the: declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature.'

4. Section 14 provides that 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 because those regulations of Sections 4 to 13 relate to minerals other than minor minerals. As regards minor minerals, the impugned Section empowers the State Government to make rules and sub-section (1) of Section 15 provides-

'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.'

It is obvious that if Section 15 sub-section (1) had not been enacted since minor minerals are included within the purview of the Central Act, the State Government would not have had any authority either to enact a legislation in respect, of minor minerals or even to take executive action but it is by virtue of Section 15 that the Parliament has empowered the State Governments to make rules regulating the grant of quarry leases, mining leases or other, mineral concessions in respect of minor minerals. 'Minor minerals' have been defined by Section 3(e) to 'mean 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. In our opinion, since the power to enact legislation even in respect of minor minerals has been by virtue of Section 2 taken under the control of the Union by the declarations set out in Section 2 of the Act, it is only for the Union Parliament to enact a law regarding the regulation of mines and the development of minerals so far as even minor minerals are concerned and to the extent provided in Section 15 it is within the Union Parliamentary List.

5. As regards the view of the learned Metropolitan Magistrate that 'regulation of minor minerals is left to the unguided discretion of the State Government, it is well-settled that the preamble or the long title to the Act gives guidelines for the framing of Rules under the Act so as to carry out the purposes of the Act and the long title of the Act indicates that this is an Act to provide for the regulation of mines and the development of minerals under the control of the Union. Section 15 empowers the State Government to make rules only for the purpose of regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. It is only in this limited field that the Rules can be made and the Rules can be with the object of regulating the mines and development of minerals where minor minerals are extracted. Under these circumstances it cannot be said that the framing of the rules is left to the unfettered discretion of the State Government.

6. Under these circumstances it must be held that Section 15 of the Mines and Minerals (Regulation and Development) Act, 19,57 is intra vires and within the jurisdiction of the Union Parliament and is, therefore, not void or invalid . The Reference is, therefore, disposed of accordingly.

7. Reference answered.


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