1. All these petitions by different citizens but against the common respondents, namely, the State of Guiarat and the concerned officers of the State essentially raise a common question of law regarding the vires of S. 69A(1) of the Land Revenue Code which had come to be introduced into the said Code by the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gtijaral Amendment) Act, 1982, wlii,,h vas the successor of the Bombay Lind Revenue Code and Land Tenure Abolition (Gujarat Amendment) Ordinance, 1981. In all these petitions the substantive prayer and, if we say so, the, main prayer is striking down of these provisions and the other reliefs that are sought in these petitions are flowing from the said main prayer. The other prayers are pertaining to the requisitions by the Revenue Officers calling upon these petitioners to hand-over the mines and minerals in question or stop conducting mining operations therein, etc.
2. In order to understand the confror versies, a few facts are required to he stated which take us into the history of erstwhile State of Saurashtra which had come to be formed in the year 1949 or thereabout. It is well known that Saurashtra region was having the largest number of princely States and these princely Slates, sovereign in a sense under the suzerainty of the British Empire had created a class of interested people known a 'Girasdars' or 'Barkhalidars'. Various parcels of land together with all rights to or in those lands had conic lo be devolved by those Rulers in favour 4 their cadets or relations or favouriles who were popularly known as ' 'Gir isdars' or 'Barkhalidars'. The term 'Barkhalidar' has got its historical meaning The lands that were under the direct control of the respective ruler were of course with agriculturists, but all those agriculturists had to bring all their prcr duce at the fixed place known as 'khal,' or a threshing floor. After the respective ruler or his agent took stock of' the total produce, his share defined as per the local laws or customs of that particular State was to be then taken out and remainder used to go to the concerned the agriculturist. So, these lands the produce of which was required to be stored in the first instance in those threshing floors were known as 'khali lands'. The lands which were given away by the rulers to their cadets and others were required to be treated separately. The produce in those granted lands was not required to be brought into those 'Khalis' or threshing floors and, therefore, all those lands were popularly known as 'Barkhalil, meaning thereby the lands out of the operation of the 'Khali' (Vernacular ornitted-Ed.) and the holders of such lands the produce of which was not required to be collerted atid ascertained in those threshing floors were known as 'Barkhalidars'. The 'Girasdars' meaning the cadets or agnates of the rulers also in the above sense were 'Barkhalidars' and the United States of Saurashtra having brought into being obviously this anachronistic land tenure scheme was required to be done away with and the and the progressive State of Saurashtra tried to achieve this by striking, golden halance. Various pieces of laws made and one of them was 'the Saurashtra Estates Acquisition Act, 1952, being Saurashtra State Act No. 3 of 1952. Section 3 of ihe said Act provides State Government from time to tiem by a Notification in the Official Gazette, may declare that with effect from such date as may be specified in the notification, all the rights, title and interest of Girasdars or Barkhalidars in respect of any estate or part of ar estate comprised in the notification, Case and be vested in the State Goveriiment and all the incidents of ihe said tenures attachinq to any land comprised in such eslate or part thereof shall be doemed to have been extinguished. The provisions of this Act of Saurashtra State materially differ from the similar provisions of the Taluqdari Tenure Aboli,ion Act of the Bombay State, being tho Act No. 52 of 1949 and other Bonr bay Acts like the Personal Enam. Abolitio n Act, 1952 and the Bombay Merged Territory Areas (Jagirs Abolition) Act, 1953. The Bombay Acts provided that with effect from the date on which the TCsPective Acts came into force those tenures automatically stood abolished and all the incidents of such tenures attaching, to any land comprised in those estates stood by operation of the statute If extinguished. In the Saurashtra Act, however, may be for some historical reasons, there was no forthright or forth with Pxtinction of all rights, title and in'torest of all 'Girasdars' or Barkhalidars, occupying the estates. On the other hand power was conferred on the State Covernmejit to select time and to select estates or parts thereof for the purpose of applying exproprietarv provisions of the Aclause Section 3 (1) of the Saurashtra Act is reproduced below, because some of the arguments that were advanced before us in the course of the hearing go to refer to it.
'3. (1) The Government may, from time to time, by notification in the Official Gazette, declare that with effect from such date as may be specified in the notification, all the rights, title and interest of Girasdars or arkhalidars shall, in respect of any estate or part of an estate comprised in the notification, case with be vested in the (State of Gujarat) and all the incidents of the saul tenures attaching to any land comprised in such estate or part thereof shall be deemed to have been extinguished.' Section 4 of the said Act then provides 'for the consequences of abolition of Girasdari or Barkhali in any estate and that is also reproduced herein below :-
'4.When a notification is issued by the Gevernment in respect of an estate or any part thereof under S. 3, then, with effect from the date specified in the notification, the following consequences, shall in respect of that estate or ,part thereof, ensue, namely:-
a) (i) all public road, land, paths, bridges, ditches, dikes and fences on, or beside the same, the bed of the sea and ' ' harbours, creeks below high water mark, and of rivers, streams, nalas, lakes public wells and tanks, all bunds and palas, standing and flowing water gauchars.
(ii) all cultivable and uncultivable waste lands (excluding land used ior building or other non-agricultural purposes);
(iii) all bid lands;
iv) all unbuilt village site lands and village site lands on which dwelling houses of artisans and landless labourer are situated, and
(v) all schools, dharmashalas, village choras, public temples and such other public buildings or structures as may be specified in the notification together with the sites on which such buildings and strwtures stand, which are comprised in the estates so notified shall, except in so far as any rights of any person other than the Girasdar or the Barkhalidar may be established in and over the same, and except as may otherwise be provided by any law, for the time being in force, vest in, and shall be deemed lo be, with all rights in or over the same or appertaining thereto, the property of the (Sate of Gujarat) and all rights held by a Girasdar or a Barkhalidar in such property shall be deemed to have been extinguisbed, and it shall be lawful forthe Collector, subject to the general or special orders of the (Collector), to deems, fit, subject way and of other dispose of them as he always to,the rights of r,jlhts Of the public Or Of individuals legally subsisting.
(b) a Girasdar or 4 Barkhalidar shall, subject to the 1)::ovisions of this Act, be deemed to be an occupant in respect -)f all other land held by him.'
The combined effect of Ss. 3 and 4 of tb-e Act is that it was left,to the Government concerned. to pick and choose on administrative grounds, the various parts or whole of the estates of the Girasdars or Barkhaliclars for the purpose of application of the Act by issuance a Notification in the Official Gazette, and its effects, thouch not required to be specifically notified, were in fact notified by the State of Saurasatra in those day Our attention was invited by Mr. S. M, Shah to one of such Notifications beLlig No. RD/4/2541 dated 2nd Sept. 1954 occuring at page 1590 of Part-V of the Saurashtra Government Gazetle. The said Notification is reproduced herkn below as a specimen.
'Sub:- Acquisition of uncultivable waste land in Saurashtra.
Rajkot, 2nd Sept. 1954.
No. RD/IV/`2541.- Whereas it is necessary to acquire all uncultivable -waste land held by trasdars/Barkhalidars in Saurashtra;
Now, therefore, in exercise of the poviers conferred by S. 3 of the Saurashtra Estate Acquisition Act; 1952 (111 of 1952'), Government is pleased to declare that with effect from the date of this Notification all the rights, title and interest of all Girasdars/Barkhalidars in Saurashtra in respect of the uncultivable waste land held by them, being part of the estate held by these Girasdars Barkhalidars shall cease and be vested in the state tale and that all the incidents, of the said tenures attachina to such lands shall be deemed to have been extinguished.
By order and in the name of the Rai Pramukh of Saurashtra,
Secretary to the Government' of Saurashtra, Revenue Deptt.,
It is because of the language of the Notification that we say that the Government, of Saurashtra used to adopt one or other kinds of properties enumerated in sub-cls. (i) to (v) of clause (a) of . S. 4 of the Saurashtra Act for applying rigorcus provisions of S. 3 (1) of the said Act. We 'are told that for different kinds of properties enumerated in sub-cis. (i) to (v) Of clause (a) of S. 4 of the said Act different notifications had come to be issued. If all pervading notifications, general in character, in respect of all the properties would come to be issued under S. 3 (1), the properties other than those enumerated in sub-cis, (i) to (v) of clause (a) of S. 4 were to remain with the Girasdars or the Barkhalidars as occupants as per clause (b) of S. 4. The question is: What would happen. if the, Government of Saurashtra did not issue a general notification in respect of the entire or whole estate of a Girasdar or a Barkhalidar, but issued a notification only with resspect to properties mentioned in subcls. (1) to (v) of clause (a) of S. 4 of the said Act'? The obvious effect would be that the cl, (b) will not be attracted and the remainder. of the properites in the estate will continue to be the property of the Girasdar or the Barkhalidars is such,This inevitable inference is referred to by us because at some later stage an argument based on it is required to be examined by us.
3. Now it so happened that the authorities of the Gujarat Government did not properly comprehend the effect of the provisions of Ss. 3 and 4 of the Saurashtra Estate Acquisition Act, 1952 referred to hereinabove. The former Courts had recognised and declared the rights of various Girasdars and Barkhalidars to the mines and minerals in the bhayati i. e. Barkhali lands. Still, the officers of the respondent-State disputed , those rights and so, the matter, had come to this Court in the year 1965. The case of Girasdars like the petitioners in the Special Civil Application No. 689 of 1965 between Temubha RhodLvbha Gohil v.Chhaganlal K. Dave was decided on 14-8-1969' by J. B. Mehta J. In that case ,it was held specifically by 'special reference to the provisions of this Act and the notifications under Ss. 3 and 4 of the Act that the, notification was confiied to only- uncultivable waste land vesting the State and that the lands with mines and minerals could not be 'said to be umcultivable, waste lands.. The result,was that the learned single Judge clerly held the quarries which were used, by the petitioners of that petition on tqe relevanj date for non-agricuttural purposes could never be waste lands and on that basis both the impugned orders must be quashed. This judgment of the learned single Judge had come to be confirmed bv the Division Bench consisting of Justice P. N. Bhagwati, the then Chief justice and P. D. Desai, J., the then Pusne Judge, by dismissing the Letters Patent Appeal No. 73 of 1970 summarily by their Order dt. 15-3-1971. It is, therefore, too late in the day now to say that all these petitioners were not entitled to the mines and minerals in the various lands wh;ch were certainly not Uncultivabte waste lands nor were they cultivable lands.
4. After having realised that these valuable mines and minerals could not be had by the State Government not only because of the provisions of the Saurashtra Estate Acquisition Act, 1952, but also because of the provisions of S. 69 of the Land Revenue Code as it then was prior to the impugned amendment in the year 1981-82, the State Government belatedlV came forthwith an amendment in S. 69 of the Land Revenue Code, which has been the subject-matter of the chatlange before us. S. 69 of the Land Reve -nue Code before its amendmem in the, year 1981 and 1982 read as follows:
'69. The right of the Government to mines and mineral products in all, upalienated land is and is hereby declared to be expressly reserved.
Provided that nothing in this section shall be deemed to affect any subsisting rights of any occupant of such land in respect of such mines or mineral products.'
The section as it stood then certainly protected the cases of the people like the present petitioners who were holding alienated land. Even the erstwhile occupants under the provisions of the various Acts like the Bombay Taluqdari Tenure Abolition Act, 1949, referred to hereinabove used to claim a right to these mines and mineral products, be.cause their rights were subsisting even when they were occupants of those lands and this position continued despite the enactment of the Mines and Minerals (Regulation and Development) Act, 1957, enacted by the Parliament in the year 1957. The State, it appears could not brook this sort of its exclusion from those valuable mines and mineral rights and as said above, belatedly came forthwith the Bombay Land Revenue Cotie and Land Tenure Abolition (Gujarat Amendment) Ordinance, 1981 substituted by the impugned Act, namely, the Bombay Land Revenue Code and Land Tenure Abolition (Gujrat Amendment) Act, 1982 As per the said amendment S. 69 came to be amended and now it reads as follows:
'69. The right of the Government to mines and mineral products in all land is and is hereby declared to be expressly reserved.'
This means that the word 'unalienated' occurring therein came to be deleted and the prov'so that was there also came to be deleted. S. 2 of the amending Act of 1982 which has effected the above mentioned amendments has made it clear that the proviso shall be and shall be deemed always to have been deleted with effect from Ist May 1960. This mewis that the proviso was retroactively done away with and the effect of deletion is from 1st May 1960. Then by the very amending Act by sub-section (3) of S. 2, S.. 69-A came to be inserted, into the Land Revenue Code, again retroactively, with effect from ist May 1960. The pro-visions of S.s. 69A(1) to (6) are reproduced below:
'69. A (1) Notwithstanding anything contained in any custom, usage, grant sanad or order or agreement or any law for the time being in force, or in any judgment, decree or order of a Court or of other aWhority, with effect on and from the Ist May 1960 all mines whether being worked or not and minerals whether discovered or not and all quarries which are situate within the limits of any land, granted or recognised under any contract, grant or law for the time being in force or decree of a Court, shall vest in and, with all righ1s over 'the same or appurtenant thereto be the property of the Sta-e Government and the State Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 hava all powers necessary for the proper en-joyment and disposal of such rights.
(2) The rights of the Government to mines and mineral products in land reserved under S. 69 or the rights of the Government to mines, minerals and quarries vested under sub-see. (1) include the right of access to land , for the purpose of prospecting and working mines and the right to occupy such other land as may be necessary for purposes of erection of offices, workmen's dwellings and machinery, the stacking of minerals and deposit of refuse, the construction of roads, railways or tramlines and any other purposes which the State Government may declare to be subsidiary to prospecting and working mines.
(3) If the State Government assigns to any person its rights over any mines, minerals, quarries or mineral products, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-sees. (1) and (2) 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 is assigned.
(4) Any occupant, whose rights to mines, minerals or quarries in any land, exisVner immediately before the Ist Mr)y 1960 have vesed in the State Government on that date under sub-see. (1), shall be entitled to compensation of an amount equivalent to the average of the net annual income received by the occupant in respect of the mines and mineral products during the three years immedia'~ely preceding the date of vesting.
(5) (a) Any occupant entitled to compensaiion under sub-see. (4) may apply to the Collectors for such compensation in the form prescribed in this behalf by the State Government.
(b) Such application shall be made within twelve months from the date of the commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981 or such further period as may be prescribed by the State Government.
(c) The Collector shall, after makbig such inquiry (including giving the aPplicant an opportunity of being heard) as he thinks necessary, determine the amount of compensation and the provisions of Ss, 9, 10, 11, 12, 13, 14 and 15 of the Land Acquisition Act, 1894 shall so far as may apply to the proceedings iield by the Collector accordingly.
(d) The decision of the Collector determining the amount of compensation shall, svbject to decision in an appeal to the Gujarat Revenue Tribunal be final, and payment shall be made by the Collector accordingly.
(e) The amount of compensation payable under this section shall be paid in cash with interest at the rate of 41 percent for the period commencing on and from the date of commencement of tne Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981 and ending on the date of payment.'
5. Being aggrieved by the aforesaid retroactive snatching away of their rights, the petitioners have challenged these very amendments on the ground which we shall now deal with. The firA argument that was advanced before iLs quite vigorously was that as the petitioners were not declared as occupants by operation of law, namely, clause (b) of S. 4 of the 1952 Acquisition Act of the Saurashtra State, their rights to mines and minerals, i. e. the land contain',ng those mines and minerals remained intact. It is difficult to subscribe to the argument, because S. 69 as it now stands does away with the distinction between 'alienated' and 'unalienated' land. Under S. 37(1) of the Land Revenue Code, all lands wherever situated, wh1ch are not the property of the individuals, are to be with all rights in or over the same the property of the Government. As far as the present petitioners are concerned, we are ready to say that for want of any Notification issued under Section 3 of the 1952 Saurashtra Act referred to hereinabove, the land continues to be alienated land with the Government standing above the persons holding lands. The petitioners were either 'Barkhalidars' or 'Girasdars' and as such their rights to these lands can be said to survive but subject to that the superior right of the State stepping into the shoes of the erstwhile rulers from whom these Barkhalidars derived their rights. It is in this context that we have referred to S. 37(1) of the Land Revenue Code. It can never be argued that a 'Girasdar' or a 'Barkhalidar' was the absolute owner of the properties, because tenuTes of whatever character they are, were under the erstwhile sovereign power and that sovereign power has certainly vested in the State Government. In that sense of the term the Government is to be stated to be the superior proprietor of all lands subject to of course the right of the Girasdars or the Barkhalidars. If it be so, and if the amendment of S. 69 of the Land Revenue Code and insertion of S. 69A into the 'Act is otherwise valid, the States' right to claim all mines and minerals in the land on which it is the superior owner, subject to ol.her rights of Girasdars or Barkhalidars, cannot be quarreled with. So, ,he provisions of S. 69 as amended with effect from 1-5-1960 would show that on and from that date the mines and mineral products in these lands were reserved ~o the State Government and 'o that extent and particularly, because of S. 69-A (that 'the rights of these petitioners to mines and mineral products in those lands can be said to have been liquidated. S. 69A(1) in terms state that notwithstanding anything contained in any customs, usage, grant (a Barkhalidar or a Girasdar is the grantee of land under the grant of the erstwhile ruler of that particular area), sanad or order or agreement or any law for the time being in force, Or in any judgment, decree or order of a Court or of other authority, with effect on and from the lst May 1960 all mines whether being work~ed or not and minerals whether discovered or not, and all quarries, which are situate within the limits of any land granted or recognised un(jer any contract, grant or law for the time being in force or decree of a court, sha,I vest in the State Government with all rights over the same or appurtenant thereto. So, S. 69A(1) expressly purports to take away by a legislative rnandate the petitioners' rights to the mines and quarries in the lands, which, under the provisions of the Saurashtra Estates Acquisition Act, 1952 can still be stated to be continuing with the petitioners.
6. The provisions of S. 69A(1) if constitutionally valid call for no case for interpretation. The words are too clear and they provide that ihe rights to mines and minerals and quarries on all such lands stand vested in the Government and whatever rights to these mineg and minerals were there in those citizens like the petitioners came to be lost on and from lst May 1960. This is a clear import of the provisions of S. 69-A (11 of the amending Act, and in our view, there is no escape from the same.
7. Realising this inevitable outcome of provisions of S.69A(1) read with the amended S. 69 of the Act, all the petitioners have specifically challenged the vires of the amending Act which introduced the said provisions to the detriment of these petitioners. The first prong of attack was that the State Legislature had no authority to enact such a law dealing with mi nes and minerals. It was submitted before us that if under EnLry No. 54 of the Union List set out in Schedule-VII of the Constitution, tile right to make any law relating to reguialion of mines and mineral development to the extent to which such regulation and development under the control of the Union is deelared by Parliament by law to be expedient in the public interest, the State Legislature's right to make the similar law under Entry No. 23 of the State List stood abrogated. It cannot be gainsaid that if the Parliament by law declares that it is expedient in the public interest to regulate mines and to develop minerals to the extent to which such regulation and development under the control of the Union is necessary, the State Government's power to make the similar law under Entry No. 23 regarding 'Regulation of mines and mineral development' s! ands abrogated. Such a declaration is in fact made by the Paoliament by enacting S. 2 of the Mines and Minerals (Regulation and Development) Act, 1957. S. 2 of the said Act reads as follows:
'2. It is hereby declared that it is expedient in the public inierest that the Union should take under its control the regu ation of mines and the development of minerals to the extent hereinafter provided.'
So, we have no manner of doubt that the State Government had no power to make any law pertaining to regulation of mines and development of minerals because of the Parliament having declared in unequivocal terms that it was in the public interes,. for the Parliament to make a law regarding regulation of mines and development of minerals. The petitioner, contended before us that because of the:: said Act made by the Parliament being, the Act No. 67 of 1957, the State Government was not competent to enact the present provisions of law namely, S. 59-A ' which pertains to regulation of miliesi and development of minerals. It is difficult for us to accept this argument.1 S. 69A and the corresponding amendment made in S. 69 of the Land Revenue Code are not intended to make any provision for regulating mines or for developine minerals. They are the provisions enacted for the purpose of expropriating the Girasdars and the Barkhalidars and o1her occupants under the. Tenure Abolition Acts referred to hereinabove of their rights to mines and minerals. The law, in our view, is pertaining to land and the rights in or over the same and it also pertains to land tenures. In other words, this amending Act is related to Entry No. 18 of the State List of the Seventh Schedule of the Constitution. It is well said in good many. judicial pronouncements that at some stages the entries may seem to be overlapping, because entries are not to be interpreled as we. interpret legislation on some tax. The entries in three lists of the Seventh Schedule of the Constitution of India are only legislative heads and they demarca:e the area over which the appropriate legislature can operate.
8. Mr. S. M. Shah and Mr. Jadeja the learned counsel for the respective pet~-tioners, however, in this connection invited our attention to the Statement of Objects and Reasons Jor tbe~ Act which reads as follows:
Section 69 of the Bombay Land Revenue Code, 1879 While reservinp the right of the Government to mines and mineral products in all unalienated and taluqdari lands, saves rights of any occupant of such land if subsisting. Similarly the provisions of the Bombay Personal Ina-ras Abolition Act, 1952 the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 and the Bombay Merged Territories Miscellaneous Alienation Abolition Act, 1965, while abolishing the rights of an inamdar, jagirdars or alience respectively in tenuTe lands save their subsisting rights to mines and mineral products in such land. The intention underlying the use of the word 'subsisting' in those provisions savine the rights to mines and mineral products was to save only rights to mines which vere being worked at the time of the abolition of the tenure and the mineral products already discovered therefrom and not to save the rights to mines which were Dot being worked at the time of such abolition and minerals even if they were not discovered at that time.. However, the provisions saving the right to mines and mineral products have been interpreted by different courts as_ permitting the tenure holder to continue to exercise his rights in relation to the mines: and mineral products in tenure lands although those lands vest in the State . Government or persons other than the tenure holder. Susch intepretation has hampered the efforts of the State Government in recialating and-developing the mining industry in the State and consequently in pro~ vidiDg employment to he unemployed. It is considered necessary to abolish such rights retrospectively and for that purpose amend the Bombay Land Revenue Code, 1879 and the relevant tenure Abolition Laws.'
The learned counsel in the light of that statement and the litigation concerning the rights to mines and minerals urged before us very vehemently that the prime motive or object of the State Legislature in enacting this, piece of legislation was to regulate and develop the mining industry in the State and consequently providine employment to the unemployed people. To the credit. ot the learned counsel it must be said that the above statement made there does purport to support their 'submission but the scope of such a statement in interpreting legislation so in any a, piece of is very limited, if at, all it is way. The Statements of Objects and Reasons are the statements of the mover of the Bill and they cannot be, by any reasonable yardstick of logic, stated to be the objects of the legislature itself. The object behind a particular enactment is to be discovered essentially from the provisions of the Act, themselves and if we look to those provisions of S. 69A in their entirety and in the spectrum of other provisions of the amending Act, we cannot escape the conclusion that the idea was to deprive those claimants of these rights of the land in the form of their rights to mines and minerals. These Bombay State laws seemed to be reserving the rights of those taluqdars and others to those mines and minerals and such rights of the Barkhalidars and Girasdars of the erst while State of Saurashtra also were stated to have been left touched by the interpretation of the Saurashtra Land Reforms Act and the other provisions of the Act like the one before us. The Legislature, therefore, seems to have thought that it was. anachronistic to allow private interests. to continue to have their away -and control over these lands.containing valuable things, and that is why the valuable rights, in or -over the land mines and minerals are interests in the land is undisputable, were sought to be taken away. So, the idea is to deprive the petitioners of their rights to or in or over the lands, so that the said rights came to be vested in the State Government. No provision of this impugned Act deals with regulating of mines or the development of minerals. On the contrary, sub-see. (1) of S. 69A in terms states that these mines and minerals (which are land for all legal purposes) shall vest in the State Government as the State Government's property and the State Government shall have powers to deal with the same 'subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957.This means and in our view must mean that the State Legislature did not try to trench upon in any way the domain of the Parliament.
9. In above view of the matter reference to the Judgment of the Supreme Court in the case of Baijnath Kedia v. State of Bihar, AIR 1970 SC 1436 is irrelevant. In that case the State Government by amending the Rules and 'their earlier Law tried to deal with the terms and conditions of the mining lease. It is. in that context that the, Supreme Court has said.that ence,there is made a deciaration by the Parliament in . a, stati.11te that contrc4 should vest in the CcWoval Government, the State Legislature's competence under Entry No. 23 to enact legislation in that regard is taken away by the Constitution. We do not think that this judgment has got any relevance in the circumstances of the case on hand. We would reiterate that pith and substance of the present Act, despite what is stated in the Statement of Objects and Reasons, is taking away the rights to mines and minerals from private hands for the. benefit of the State, which is the ultimate owner of all lands subject to rights of the citizens exi,~ting to or therein under some grant, lease etc.
10. It was in this connection urged that amendment cannot be made in the Land Revenue Code the object of which is to deal with revenue officers ant] -the land revenue in the State of Gujarat. We do not think this argument has got any relevance in the present context, because the Land Revenue Code certainly deals, with the- lands, the ~ assessment thereof and the rights to or in the same. It was then alleged that the. provisions -of those expropriatory Acts should be declared null and void because they purported to deprive the citizens of their right. The said right is no longer a fundamenTal right. Clause 19 (1) (f) in Part III of the Constitution has -been done awav along with the Art. 31 of the Cons~ ' itution and the only provision that holds the field presently is the Art. 300A of the Constitution which simply requires that no person shall be deprived of his property save by authority of law. The provisions of this amending Act are the provisions of law and the citizens are sought to be deprived of their rights by the authority of that law.
11. It was then alleged that the State Government had attempted to make the law retroactively and this retroactive operation of the Act was beyondi the purview of the law. It' is difficult to accept this contention. Even the taxing statutes can be made retroactive in operation and no citizen can cornplain'that he is subjected to taxation' retroactively or retrospectively. It cannot be gainsaid' that if the legislature has got a right lo enact a law on a particular subject it~ has a right to make that law on thatl subject even with effect from sorne antecedent date. in para 11 of the of the Supreme Court in the case of Rai Ramkrishna v. State of Bihar, I AIR 1963 SC 1667 the Supreme Court has in terms stated as follows:
'Where the Legislature can make a valid law, it may provide. riot onlv for the prospective operation of the said law but it can also provide for the retrospective operation of the said provisions .......A good number of authorities could be had in support of this too well entrenched proposition and we'do not think it is necessarv to burden this judgment by those citations.
12. It was then alleged that the Legislature cannot make the law operative, from a Point of time when the legal Position or constitutional ' provision was sbbstantiall' different. This Point has also been answered by the. Subre'me Court long long ago 'in . the case of Aajee Abdufl Shukeer and Company v. State of Mad ras, AIR 1964 SC 1729. In para'33 of 'be said judgment the Supreme Court has provided as follows:...The State'Legislature is free to enact laws which would have retrospeetive operation Its competence to make a law for a certain, past period depends on its, present legislative power and not on what it possessed at the period of t.me when its enactment is to have operation.'
We, therefore, do not agree with the learned Advocates on this contention. We would, however, concede that as it is in Art. 20(1) of the Constitution of India there call be prohibition againsi making any law retroactive in opera,ion, ,) u t as far as the present facts are concerned, we do not 1hink, there is any inhibition against the right of the Legislature to make the law like the one on hand.
13. It was then alleged that under Art. 31 of the Constitution as it then was prior to its deletion by the Constitution 44th Amendment Act, 1978, a law that deprived a citizen of his property roust provide for some compensation, not )ecessari1v in the form of a market price. This argument also does not survive in view of the above mentioned judgment of the Supreme Court. Moreover, Se--tion 69A (4) makes a provision for compensa~on even in the present case. We are not prepared to accede to the argument that the compensation provided for is temptatious or illusory. One year's average annual income in respect of the mines and mineral products cannot be said to be illusory or almost a mockery -of compensation.
14. It was then alleged that annual income provided in S. 69A(4) was the average annual income worked out an the basis of three years' income precedine 1-5-MO. A question was posed as to how the compensation was to be worked out, if for some reasons a particular land with mines and minerals in it was not subjected to mining or prospecting operations. The argument was that such a mine will be deprived of all compensation despite the provisions having been made in sub-section (4) of S. 69A of the Act. It was also alleged in this connection that the provisions of sub-section (4) would in that case be discriminatorv in so far as it provides for compensation to those who were fortunate enough to prospect the mines in those three years. TO us if appears that compensation is not a matter of right in the first instance. Secondly, when the idea is to give sortie compensation it can reasonably be understood to mean that if for some reason the prospecting is not done in the three years, the Government while giving compensation in the course of its generous approach to the problem, would adopt some such similar standards. Even if sub-see. (4) of S. 69A on this count of viola ion of Art. 14 of the Constitution is to be treated as unconstitutional, the main matter on hand, namely S. 69A(1) has a provision that cannot simultaneously fall through because of the principle of severability. Section 69A(1) can exist independently of S. 69A(4) in view of the legal position as it is available today.
15. The petitioners of the Special Civil Application No. 2396 of 1982 posed a question as to what would happen io the rights if the mines and minerals therein were taken away. We have already made the position of law very clear in ,he light of the Saurashtra Esiates Acquisition Act, 1952. The provision under S. 3 (1) of the said Act is 'he only way to deprive the citizen of his taltiqdari or mul-Girasdari rights and if those rights to the land ol-her than *he rights to the mines and m'nerals 1herem survive and to us it appears that they still stand surviving for whatever notional purposes they can exist, the petitioners can still bank on them till the Government in its administrative wisdorn sets the clock right.
16. Another question in this connection also was raised as to what would happen to these owners of mines and minerals, who had exploited these lands right from 1-5-1960 till this amending Act carne to deprive them of those righm retroactively, The Legislature was not oblivious of this possible hardship that may entail and has, therefore, in S. 7 of the amending Act made adequate provisions under the caption 'Transitory provision'. Section 7 is reproduced below:
'7. (1) Subject to the provisions of sub-sections (2) and (3), nothing contained in the Bombay Land Revenue Code, 1879, or any of th e Bombay Land Tenure Abolition Laws, as amended by this kct, shall affect anything done or any action taken before the commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (GuJarat Amendment) Ordinance, 1981 (hereinafter referred to as 'the said Ordinance') in relation to any mines, minerals or quarr:es vesting in a person other than the Government.
(2) Any prospecting licence, mining lease, quarry lease, or any document evidencinLy any mineral concession, in respect of land in which the minerals vested in a person other than the Government brought into conformity with the provisions of the Mines and Minerals (Reg-ulat'on and Development) Act, 1957 and rules made thereunder under S. 16 of the Act or iasued under that Act and the, rules made thereunder and in force at the commencement of the said Ordinance shall continue as if such licence, lease or document were given in respect of land in which minerals vested in the Government and accordingly:-
(i) such licence, lease or document 3hall be construed as if it was given by the Government.
(ii) any rent, royalty or other sum payable to such person by virtue of such licence, lease, or document shall from the commencement of the said Ordinance be payable to the Government; and
(iii) such licence or lease shall be reasonable according to law.
(3) Any obligation , or liability of the Government to pay any royalty Or any other sum to a person in relation to his right or privilege to any mines and in'Meral products existing before the commencement of the said Ordinance shall cease and no legal proceeding Or remedy for enforcement of such right or privilege or in respect of such obligalion or liabi3ity shall be instituted, contnued or enforced in any Court, or Other authority.,,
The Legislature has provided that despite this retrospective operation of the law nothing contained in it shall affect anythin.Q done or any action taken before the commencement of tile Bombly Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981 in relation to any mines, minerals or quarries vesting in a person other than the Government. It appears to us that the Goverrunent wants to treat by-gones to be by-gones and Mr. Vin, the learned Government Pleader appearing for the State also fairly made a concession before us by recourse to this Section that the State relinquished its right to take accounts of the income received by various persons operating mines and minerals right from 1-5-1960 till the date the Ordinance came into force, namely, 8th Dec., lg8l.
17. One argument advanced by Mr. Jadeja, the learned counsel for the petitioners resting on sub-section (4) of S. 69A deserves to be dealt with. He said that sub-Section is discriminatory because it provides for compensation for some and does (not) do so for the rest, though both are similarly situated. The subsection deals with an occupant who is to be given compensatiom We repel this argument on two grounds. Firstly, we have said that even if sub-section (4) is unconstitutional, sub-see. (1) of S. 69A will remain unaffected. Secondly, subsee. (4) deals only with compensation and even if the petitioners of these petitions because of want of a categorical and omnibus declaration continue to be the owners and therefore, not occupants of these lands in which these mines and -minerals are situated they may continue to hold the land technically except for mines and minerals.
18. In above view of the matter, we find no merit in any of these petitions, nor in the challenge to the vires of Section 69A of the Land Revenue Code or to the Bombay Land Revenue Code and Land Tenure Laws (Gujarat Amendment) Act, 1982. The petitions are, therefore ' rejected. Rule is discharged with no order as to costs.
19. The learned counsel at this -stage made an oral request for a certificate under Article 133 of the Constitution of India. As our judgment rests on the wellentrenched position of law enunciated by 1he Supreme Court, we do not think that we can certify these cases to be cases involving substantial questions of law of general importance calling for determination at the hands Of the Supreme Court, The oral request is, therefore, rejected. However, in Order to enable these petitioners to have further recourse in accordance with law, interim relief operative today shall continue to operate jor a iperiod of three months from today.
20. Rule discharged.