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Hind Stone, a Partnership Firm and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWit Petn. No. 1322 of 1979
Judge
Reported inAIR1981Mad82
ActsConstitution of India - Articles 13 (3) and 19 (6); Mines and Minerals (Regulation and Development) Act, 1957 - Sections 15 (1); ;Tamil Nadu Minor Mineral Concession Rules, 1959 - Rule 8-C
AppellantHind Stone, a Partnership Firm and ors.
RespondentUnion of India and ors.
Appellant AdvocateV.K. Thiruvenkatachari, Adv. for ; P. Chidambaram, Adv. ;S. Sivasubramanian and ;K.K. Venugopal, Advs. for ;P. Shanmugham, Adv. and ;M.N. Krishnaswami, ;S. Ramalingam, ;R. Mohan, ;G.R. Ramaswami, ;M.
Respondent AdvocateK. Venkataswami, Adv.-General and ;Addl. Govt. Standing Counsel
Cases ReferredAppa Rao v. V. L. Varadaraj
Excerpt:
constitution - validity of rule - articles 13 and 19 of constitution of india, section 15 of mines and minerals (regulation and development) act, 1957 and rule 8c of tamil nadu minor mineral concession rules, 1959 - petition raising question regarding validity of rule 8c - rule 8c did not restrict right of private persons to their own private land - where owner of land wants to quarry his own land he need not to get permission from government - when owner of land wants to give lease of own right to any third person permission of government required - rule 8c valid - right of quarrying own land not prevented by rule. - - however, it was found that there were several cases where lessees who obtained the black granite areas on lease by auction were not quarrying in a systematic and.....ismail, c.j.1. a single point regarding the validity of rule. 8-c of the tamil nadu minor mineral concession rules, 1959, introduced by way of amendment with effect from 7th dec. 1977 arises in all these cases, even though the attack on the validity of the said rule was mounted from different ingles by different counsel appearing for the petitioners in these writ petitions.2. entry 54 of list i of the seventh schedule to the constitution of india reads as follows.-'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 of the same schedule to the constitution of india reads as under:-'regulation of mines and mineral.....
Judgment:

Ismail, C.J.

1. A single point regarding the validity of Rule. 8-C of the Tamil Nadu Minor Mineral Concession Rules, 1959, introduced by way of amendment with effect from 7th Dec. 1977 arises in all these cases, even though the attack on the validity of the said rule was mounted from different ingles by different counsel appearing for the petitioners in these writ petitions.

2. Entry 54 of List I of the Seventh Schedule to the Constitution of India reads as follows.-

'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 of the same Schedule to the Constitution of India reads as under:-

'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.'

The Parliament, with reference to Entry 54 of List I referred to above, enacted the Mines and Minerals (Regulation and Development) Act, 1957, Central Act 67 of 1957, hereinafter referred to as the Act, Section 2 of the Act states:

'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 her in after provided.'

Section 3 of the Act defines certain expressions which include the express in on 'minor minerals', which according to Section 3(c) 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.'

3. Sections 4 to 13 are provisions dealing with certain general restrictions on undertaking any prospecting or mining 'operations. Section 13(1) enables the Central Government, by notification in the Official Gazette, to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for the purposes connected therewith. Without prejudice to the generality of sub-section (1) of Section 13, sub-section (2) of Section 13 enumerates certain matters with reference to which provision may be made in the rules.

4. Section 14 originally stated that the provisions of Sections 4 to 13 (inclusive) shall not apply to prospecting licences and mining leases in respect of minor minerals.

5. Section 15 which is important reads as follows-

'15 (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of Prospecting licences and mining leases in respect of minor minerals and for Purposes connected therewith, (2) Until rules are made under sub-section (11, any rules made by a State Government regulating the grant of Prospecting licenses and mining leases In respect of Minor minerals which are in force immediately before the commencement of this Act shall continue in force.

6. It Is unnecessary to refer to the other Provisions of the Act. However, it is important to refer to an amendment made to the Act by the Mines and Minerals (Regulation and Development) Amendment Act, 1972. By this amending Act, certain amendments of considerable significance were made. As far as Section 15 is concerned, in subsections (1) and (2) thereof, for the Words 'Prospecting licenses and mining leases' wherever they occurred, the words 'quarry leases, mining leases or other mineral concessions' were substituted. An entirely new sub-section (3) to Section 15 was introduced to the following effect,

'The holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay royalty in respect of minor minerals removed 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 four years,'

7. In exercise of the power conferred by Section 13 Central Government called 'the Mineral the powers concession the Act, the framed the rules Concession Rules, 1960,' here in after referred to as the Central Rules. Similarly pursuant to the powers conferred by Section 15(1) of the Act, the State Government. framed the rules called 'the Tamil Nadu Minor Mineral Concession Rules, 1959' hereinafter referred to as the Tamil Nadu Rules.

8. Rule 8 of the Tamil Nadu Rules dealt with lease of quarries to Private persons. In 1973, Rule 8-A was introduced by the State Government to the following effect:

'8-A, Lease to the Industries:- Notwithstanding anything to the contrary contained In Rule 8 the Collector May sanction leases in-favor of the applicants who require the mineral for their existing industry or industries or, who am having a distinct industrial Programme to utilise the mineral in their own Industry. The lease amount to be Collected from any such applicant shall be an amount equal to the average of the lease amount for the preceding three years or the average of seigniorage fee specified in Rule 8 for the preceding ten years, whichever is higher, in addition to the ordinary assessment.

9. In 1975, the Government made another rule, namely, Rule 8-B to the following effect:

'8-B. Lease black granite of to private persons:- (1) nothing to the contained Rules 8 and 8-A, competent to grant leases quarrying black granite shall be, the State Government,

(2) An application for the grant of a quarrying lease in respect of any land shall be made to the Collector of the District concerned in the prescribed form in triplicate and shall be accompanied by's fee of Rs.100/-. The Collector shall, after scrutiny, forward the application along with his remarks to the Director of Industries and Commerce who shall technically scrutinized the industrial programme given by the applicant and forward the application with his remarks to the Government.

10. Later by G. 0. Ms. No. 1312 Industries Department dated 2nd Dec. 1977, the Government made the im-. Pugned rule under Section 15 of the Act and the said rule reads as 'follows:

'8-C. Lease of quarries in respect of black granite to Government Corporation, etc.. - (1) Notwithstanding any thing to 'the contrary contained in these rules, on and from 7th Dec. 1977, no lease for quarrying black granite shall be granted to private persons.

(2) The State Government themselves may engage in quarrying black granite or grant, leases for quarrying black granite in favour of any corporation wholly Owned by the State Government.

Provided that In respect of any land belonging to any private person. The consent of such person shall be obtained for such quarrying or lease,

11. The circumstances leading to the making -of the above rule have been Net out by the State of Tamil Nadu in the common counter affidavit filed in these cases as follows:-

'I submit that the leases for black granite are governed by the Tamil Nadu Minor Mineral Concession rules 1959 under which originally there was scope for auctioning of quarries of minor minerals. In amendment issued in the G. O. dated 6-42-1972, under Rule. 8-A it was indicated that the Collector may sanction leases in favour of applicants, who are having an industrial programme to utilise the minerals in their own industry.

This provision J-2 applicable to all minerals including black granites. However, it was found that there were several cases where lessees who obtained the black granite areas on lease by auction were not quarrying in a systematic and planned manner taking into consideration the welfare and safety measures of the workers as well as the conservation of minerals. Even after the introduction of the amendment under Rule B-A in most cases, the industry set up was of a flimsy nature more to circumvent the rule than to really introduce industry including mechanised cutting and polishing. The lessees were also interested only in obtaining the maximum profit in the shortest period of time without taking into consideration the proper mining and development of the mineral. There was also considerable wastage of raw materials due to wasteful mining. Therefore, Government Issued a further amendment as Rule 8-B wherein the competent authority to grant leases in respect of the quarrying black granite was transferred from the Collector to the State Government level. They also prescribed a standard form and an application fee to be paid with the application. The amendment states that the Director of Industries and Commerce shall technically scrutinize the industrial programme given by the applicant while forwarding the same to Government. At the same time, in the G. O. issued along with amendment, it was stated that if any of the State Government organisations like Tamil Nadu Small Industries Corporation Limited, Tamil Nadu Small Industries Development Corporation Limited, Tamil Nadu Industrial Development Corporation Limited is interested to obtain a lease for black granite in a particular area, preference will be given to Government undertakings' over other private entrepreneurs for granting the leases applied for by them. However, in spite of these amendments to regulate the grant of lease, there were a large number of lessees (exceeding 140), who were engaged in mining without proper technical guiding or safety measures etc., for the These lessees made a strong representation to the then Government in 1976 expressing that though they had given assurance to set up industries to use the granites, they were not able to do so for various reason. They also represented that they should be allowed to export the, raw blocks black granites. Therefore, Government had issued a Government Order dated 15-2-1977 relating to relaxation of the ban of export of raw blocks and provision for setting up a polishing or finishing unit was not made a prerequisite. They have also stated that the terms and conditions for the existing leases would remain in force. However, on an examination of the performance of the lessees over the past several years, it has been found that excepting in a very few cases, none of the lessees had set up proper industries or developed systematic mining of the quarries. The exports continue to be mainly on the raw black granite materials and not cut and polished slabs. A large number of the leases were not operating either due to speculation or lack of finance from the lessees. Therefore, Government decided that there should be no further grant of lease to private entrepreneurs for black granite. Thing was mentioned in G. 0. Ms. No. 1312 Industries dated 2-12-1977'.

12. It is the said Rule 8-C, brought into force by the G. O. referred to above, that is challenged in the present batch of cases. Wide-ranging arguments were advanced before us based on Entry 54 of List I and Entry 23 of List II of the Seventh Schedule to 'the Constitution of India as well as Articles 301 to 304 of the Constitution of India. Having regard to the attack from this angle, a number of decisions were also cited to support the contention of the petitioners herein. However, having regard to the stand of the State Government as well as the Power, which the State Government exercised, In our opinion, such questions are not relevant and it is not necessary to go Into any of them. We feel that the two points urged by Thiru V. K. Thiru venkatachari appearing for the petitioner in W. P. No. 4467 of 1977 alone have relevancy in this behalf and hence we proceed to consider those two points.

13. The first argument of Thiru V. K. Thiruvenkatachari is that having regard to the language of Art. 298 and Art. 19(6) of the Constitution of India, only the Legislature can make a law authorising the State Government to exclusively carry on the business of mining operations and no such. authorisation can be validly effected by means of a rule made by the Government. The second argument -of the learned counsel is that in any event, the word, 'regulating' occurring in Section 15(1) of the Act cannot include a power to prohibit leases in favour of private persons.

14. As far as the first point is concerned, Article 298 of the Constitution deals with power of the State to carry on trade etc., and states:

'The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose;

Provided that-

(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and

(b)the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.'

Article 19(6) of the Constitution of India reads as follows:

'Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relation to.-

(i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii)the carrying on by the State, or .by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.'

In our opinion, Article 298 itself may not be of much assistance to support the contention of the learned counsel. In view of this only, great stress was laid on the language of Article 19(6), particularly with regard to the expression, 'Prevent' the State from making any law relating to the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or Partial, of citizens or otherwise' and it was contended that only a law made by a Legislature can authorize a State to carry on trade or business to the exclusion of the citizens. In our opinion, this argument is not sound. With reference to the language of Article 19(6), the word 'law occurring therein has to be understood as defined in Article 13(3)(a), that is, as including any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. If so, even a rule made by the Government which is otherwise valid will constitute a law or the purpose of Article 19(6). In fact, the decision of the Supreme Court in H. C. Narayanappa v. State of Mysore, AIR 19650 SC 1073 supports this conclusion of ours. In that case, the Supreme Court observed:

'In any event, the expression law as defined in Article 13(3)(a) includes any ordinance, order, bye-law, rule, regulation notification, custom etc. and the scheme framed under See. 68-C may properly be regarded as law, within the meaning of Article 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Article 19(1)

In view of this, we reject this contention of the learned counsel. However, we may point out that this contention has relevancy only to Rule 8-C (2), but not Rule 8-C (1) of the Tamil Nadu Rules.

15. As far as Rule 8-C (1) is concerned, the argument, as we have already pointed out, is that Sec. 15(1) of the Act confers power on the State Government to 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 and that the word 'regulating occurring in the said section will not comperehend a power to prohibit the grant of mining leases to private persons. In support of this contention, reliance was placed on the decision of the Federal Court in Bhola Prasad v. King-Emperor, (1942) FCR 17: AIR 1942 FC 17. In that case the Government of Bihar by a notification issue6 under Section 19(4) of the Bihar and Orissa Excise Act, 1915 prohibited the possession by any person, of country liquor and of certain drugs in the areas specified in the notification. In an appeal arising out of a prosecution and conviction under the said notification, the High Court of Patna held that the Provincial Government had no power, as the law then stood, to make a notification prohibiting the public generally within the Province or any part thereof from possessing intoxicating liquor. In consequence of this decision the Governor of Bihar enacted a Governor's Act namely, the Bihar Excise (Amendment) Act, 1940 which amended Section 19 (4) of the Bihar and Orissa Excise Act, 1915. Under the Amending Act a fresh notification was. issued in the same terms as the original notification and the validity of the amended notification was upheld by the High Court, when the matter was taken up on further appeal to the Federal Court, the Feden-1 court upheld the decision of the Patna High Court. Before the Federal Court it was contended that having regard to the language of Section 100(3) of the Government of India Act, 1936 and the relevant Entry, namely, Entry No. 31 of List II of the Seventh Schedule to the said Act, the Provincial Legislature or the Government did not have power to prohibit the possession of liquor by any person. In that context, reliance was placed on certain English authorities construing the scope of the word 'regulate' occurring in a statute6 The relevant observations of the Court are as follows.-

'In support of his first contention, counsel boldly argued that Section 100(3) of the Constitution Act, which gives a Provincial Legislature power to make laws for a Province or any part thereof 'with respect to' any of the matters enumerated in the Provincial Legislative List, has not given power to introduce either total or partial prohibition in the Province by reason only that among the matters in the List with respect to which a Provincial Legislature is empowered to legislate are those set out in Entry No. 311 Intoxicating liquors and narcotic that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs'. A power to legislate 'with respect to intoxicating liquors' could not well be expressed in wider terms, and would, in our opinion, unless the meaning of the words used is restricted or controlled by the context or by other provisions in the Act, undoubtedly include the power to prohibit intoxicating liquors throughout the Province or in any specified part of the Province. This Court has already held in United Provinces v, Atiqa Begum that the power to legislate with respect to the collection of rents (List II, Entry No. 21) includes the power to legislate with respect to the remission of rents as well as their collection, and there is a dictum in one of the judgments in that case that the power to legislate with respect to 'fisheries' (List 11, Entry No. 24) would include the prohibition of fishing altogether in particular places or at particular times. But, it is said, the context does in fact require a more restricted meaning to be given to the general words at the beginning of entry No. 31, inasmuch as 'intoxicating liquors and narcotic drugs' is followed by the words that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs'. In our opinion, these words are explanatory or illustrative words, and not words either of amplification or limitation. It is difficult to conceive of legislation with respect to intoxicating liquors and narcotic drugs which did not deal in some way or other with their production. manufacture possession, transport, -purchase or sale; and these words seem apt to cover the whole field of possible legislation on the subject. We were however referred to three English authorities, which it was alleged, justified a different conclusion. These authorities do not seem to us to be relevant for they were concerned with the meaning and effect of a statutory power to 'regulate' and it was held in - all three cases that a power to regulate does not include a power to prohibit. The first case was Dick v. Badart (1883) 10 Q. B. D. 387. In that case a dock company, who were undertakers under a special Act, had made by-laws prohibiting workmen of a specified class from working on board any vessel in the dock, unless authorized by the Company or unless permission in writing had previously been obtained from the superintendent of the dock. The company bad statutory powers to make by-laws (among other purposes) for regulating shipping, unshipping and removing of all goods within the limits of the dock and for regulating the duties and conduct of all persons, whether the servants of the undertakers or not, employed in the dock- It was held that the by-law excluding that particular class of workmen was beyond the powers conferred by the Act; first because section 33 of the Harbours, Docks and Piers Clauses Act, 1847 which was incorporated in the Special Act, had declared that, subject to certain specified conditions in any special Act authorizing the construction of any dock the harbour, docks and pier should be open to all persons for the shipping and unshipping of goods, and secondly, because a power to make by-laws for regulating the duties and conduct of persons employed in the dock could not authorize a by-law excluding a specified class of persons. In the Municipal Corporation of City of Toronto v. Virgo (1896) A. C. 88, an Act of the Ontario Legislature had given Local authorities the power to make by-laws for licensing, regulating and governing hawkers and petty chapmen and this was held not to authorize a by-law prohibiting hawkers from plying their trade at all in a substantial and important portion of th-6 city, Lord Davey observing:- 'Their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed the power to regulate and govern seems to imply a continued existence of that which is to be regulated or governed. Attention was also drawn to other sections of the Act, which gave power to make preventing or and licenses us indicating that a power to Prohibit, when it was intended that it should be given, was always given by express words. The observations of Lord Davey were quoted with approval by~ Lord Watson, delivering the judgment of the Judicial Committee in Att. Gen. for Ontario v. Att. Gen. for Canada (1896) A. C. 348 , in which it was decided that the Power given to the Dominion Parliament by Section 91(2) of the British NorthAm6rica Act to make laws for the regulation of trade and commerce did not enable the Dominion Legislator to enact legislation to, prohibit the traffic in intoxicating liquors. We see reason to dissent from the view that a power to regulate does not include a power to prohibit; but since neither the word 'regulation' itself so many other comparable expression appears in entry No. 31, it does not appear necessary to pursue the argument further. A power to regulate may well imply the continued existence of the thing to be regulated; but no such triplication can arise from the words in the entry which, as we have said, only explain or concise expression precedes them'.

Relying on the above observations, it was contended that the State Government had no power to make the impugned rule, as the impugned rule prohibits the grant of leases to private citizens and such prohibition cannot be comprehended by the expression ' regulating' occurring in Section 15(1) of the Act.

16. The learned acting Advocate General appearing on behalf of the State of Tamil Nadu did not dispute the basic contention that the word regulate does not include a power to prohibit. However, what he contended was that the impugned rule does not prohibit the grant of leases. According. Union of India to the learned acting Advocate-General the power to regulate under Section 15(1) of the Act is in respect of minor minerals generally and therefore unless the State Government makes rule prohibiting grant of mining leases in favour of private persons with respect to all the minor minerals, the State Government cannot be accused of having prohibited the grant of among lease in respect of minor minerals to private individuals m excess of their powers under Section 15(1) of the Act. In other words, the argument is that the present rule prohibits the grant of mining leases in respect of a single minor mineral and that therefore the said rule cannot be said to be in process of the powers of the State Government under Section 15(1) of the Act.

17. We are unable to accept this argument. If this argument is accepted, the result will be curious. We have already extracted the definition of the term 'minor minerals' occurring in Section 3(e) of the Act. The said definition does not stop with referring to building stones, gravel, ordinary clay, ordinary sand other than used for prescribed purposes, but proceeds to refer to 'any other mineral which the Central Government may, by notification the Official Gazette, declare to be a 'minor mineral'. Consequently, there is no exhaustive definition of the minor minerals' in the statute itself. If the contention of the learned acting Advocate-General is accepted, the result wjJ1 be that the Government can go on making rules prohibiting grant of mining leases in respect of specified minor minerals and each one of them will be valid, because none of them prohibits the grant of mining leases in respect of all the minor minerals. On the face of it, such a contention is an untenable one and therefore we reject the same.

18. It may be noted that the State Government in the very Government order under which they have made the impugned rule purported to exercise their, powers only under Section 15(1) of the, Act and- if that power is not available to the State Government under that section, certainly the rule, In question would be in excess of the rule, making power of the State Government. No other source of power for the State Government to make the rule in question was notice.

19. Consequently the conclusion is irresistible that the impugned rule is void, as being beyond the rule-making power of the State Government under Section 15(1) of the Act.

20.We have already referred to the fact that the first argument of Thiru V. K. Thiruvenkatachari with reference to the language of Article 298 and Article 19(6) of the Constitution of India will have relevancy only to clause (2) of Rule 8-C. Even though we have rejected that argument, (2) cannot stand independently of 61. (1) of Rule 8-C, because clause (2) of Rule 8-C is merely a consequence of the prohibition relating to grant of mining leases in respect of black granite to private persons. Once it is held that clause (1) of Rule 8-C is void on account of the fact that the State Government exceeded their rule-making authority in making that rule, clause (2) is dependent thereon and is consequence thereof will also brought to our which merely have to go.

21. In the light of the above conclusion of ours; we shall now dispose of the prayers contained in the different eases before us.

22. In W. P. Nos. 4467 of 1977, 567 of 1978, 1356 of 1978, i664 of 1978,1665 of 1978, 2433 of 1978, 2614 of1978, 2615 of 1978, 3024 of 1978, 3881 of 1978, 3174 of 1978, 2307 of 1978, 3996 of 1979, 21 of 1979, 22 of 1979, of 1979, 6176 of 1979, 3883 of 1997, and 3899 of 1978, the relief prayed for is the issue of a writ of declaration declaring that the impugned rule is invalid and illegal and in view of the conclusion we have come to, these with potions will stand allowed and a writ of declaration as prayed or will issue in each one of these it petitions.

23. In W. P. Nos. 1369/78, 1511/1978, 1512/1978, 1858/1978, 2933/1978, 3051/1978, 3530/1978, 3669/1978, 3824/1978, 4608/1978, 232/1979, 2447/1979, 5364/1979 and 5450/1979, the prayer is for the issue of writ of mandamus directing the respondents to consider the applications made by the petitioners for grant or renewal of mining leases without reference to the impugned rule. In view of our conclusion on the principal question, these Writ Petitions also will stand allowed and in each one of them, a writ of mandamus as prayed for will issue,

24. In W. P. Nos. 1102 of 1978, 1308 of 1978, 1484 of- 1979. 1513 of 1978, 2939 of 1978 and 3101 of 1978, the prayer is to quash the order of the Government declining to grant or renew the mining leases in the light of the impugned rule and to issue a writ of mandamus to the Government to reconsider the applications of the petitioners without reference to Rule 8-C. Here again for the reasons already given, these writ petitions will stand allowed and the orders of the Government rejecting the applications of the petitioners will stand quashed and a writ of mandamus will issue in each of the writ petitions directing the Government to consider the applications of these petitioners without reference to the impugned rule.

25. In W. P. Nos. 4,676 of 1978 and 72 of 1979, the prayer is for the issue of a writ of certiorari to quash the orders rejecting applications of the petitioners therein, while the prayer in W. P. Nos. 4766 and 4793 of 1978 is for the issue of a writ of certiorari to quash the orders granting the lease to the Tamil Nadu Minerals Ltd. Since the rejection of the applications of the petitioners or the grant of lease to the Tamil Nadu Minerals Ltd., was based solely on the impugned rule, these writ petitions namely, W. P. Nos. 4676 of 1978 and 72 of 1979 and 4766 and 4793 of 1978 will also stand allowed and a writ of certiorari will issue in each case as prayed for. The result of this will be that the applications of the petitioners in these writ petitions also will have to be considered without reference to the impugned rule.

26. We may also point out that there are a number of rises in which applications have been made sufficiently earlier to the making of the rule in question, namely, Rule B-C on 2nd December 1977, and they have been rejected' subsequently in the light of the said rule. We are clearly of the opinion that the Government have no right to keep such applications pending unduly for a long time and thereafter dismiss the same in the light of Rule 8-C. In fact in such cases the Government will be ', under an obligation to dispose of the applications without reference to Rule 8-c respective of whether Rule 8-C is valid or not.

27. Rule 9 of the Tamil Nadu Rules deals with renewal of lease. Sub rule (2) of that rule expressly states that every application for renewal shall be made to the Collector, sixty days prior to the date of expiry of the lease, The intention underlying the requirement that an application for renewal should be made sixty days, prior to the date of expiry of the lease is that the competent authority will be able to process and scrutinized the application within the said sixty days so that by the time of the expiry' of the original lease, it would be in a position to pass orders renewing the lease or rejecting the application, for renewal. If so, the Government are not entitled to keep an application pending for unduly long time and thereafter apply Rule 8-C and reject the application on that ground.

28. What we have said with reference to renewal will also apply to an application for the grant of mining lease even though the sixty days time limit may not strictly apply to the same. Yet the Government can take only a reasonable time for scrutinising and disposing of the application.

29.For instance, the following table will indicate the date on which the application for grant of a lease or renewal of lease was made and what happened to the said application, till the date when the writ petitions were filed:

30. We are clearly of the opinion that irrespective of the validity of Rule 8-C, the Collector as well as the Government were not Justified in keeping those applications pending unduly for long time and thereafter rejecting the same on the ground of prohibition contained in the impugned rule, Even if the rule had been valid, it was the bounden duty of the authorities to have disposed of those applications without reference to the rule in question, because the petitioners had filed their applications sufficiently in advance of the coming into force of the impugned rule and they could not be penalised for the action of the Government in delaying the disposal of their applications. As a matter of fact, recently in W. A. No. 129 of 1980 Special Officer (Town Planning Committee) Madras v. Narayanadas Gupta judgment dated 2nd April 1980) a Bench of this Court to which one of us was a party, has held with reference to an application filed by a person before the Corporation of Madras for the sanction of building plan on 13-12-1973, that the Corporation could not Insist upon the compliance

WhetherSI. No. of Writ Date of application Date on which pending on theNo. Petition For grant of For renewal rejected date of Writ lease of lease petitions1 2 3 4 5 6 1 4467 of 77 9-10-76 Pending 2 1102 of 78 24-11-75 2-3-1978 3 1308 of 78 1-3-76 9-2-19784 1356 of 78 3-9-76 Pending5 1511 of 78 23-1-76 Pending6 1512 of 78 11-5-76 Pending7 1513 of 78 10-1-76 9-2-788 2433 of 78 31-5-76 15-2-789 2614 of 78 1-10-75 Pending10 2615 of 78 24-11-75 Pending11 2933 of 78 3-9-76 Pending12 2939 of 78 29-10-75 12-4-7813 3881 of 78 3-9-76 Pending14 3669 of 78 10-12-76 2-1-7815 4676 of 78 9-10-76 17-5-78 16 5364 of 79 22-12-76 22-5-7817 4793 of 78 3-9-76 Pending18 3883 of 78 13-10-76 Pending19 3899 of 78 13-10-76 Pending

ance with the requirement of Sec. 49 of the Tamil Nadu Town and Country Planning Act 1971 (Tamil Nadu Act XXXV of'1972), which was brought into force only in 1975 that when the application for building licence was made in December 1973, the said Act was not in force and if the application had been disposed of without undue delay, the Corporation could not have insisted upon the party obtaining a planning permission under Section 49 of the Tamil Nadu Act XXXV 1972; and that simply because there had been some delay in the disposal of the application by the Corporation, the right which the party had to have his application disposed of in accordance with the law then in force, could not be affected by the super-imposition of the requirement of Section 49 of the Tamil Nadu Act XXXV of 1972. A petition for special leave to appeal to Supreme Court was dismissed by the Supreme Court. Under these circumstances, the principle underlying the said decision will squarely apply to those cases where applications made by the parties either for the grant of, a 'lease or for the renewal of a lease have been kept pending unduly for long time, that is, till the coming into force of the impugned rule.

31. W. P. Nos. 334, 3580 and 3581 of 1978, 2303, 3144, 256.8, 3793, 4163, 4164, 4289, 4368, 4558, 5713 and 3666 of 1979 raise a slightly different point The lands involved in these cases are the patta lands of the petitioners them- The question for consideration is irrespective of any other consideration, whether Rule 8-C can be involved with reference to such lands.

32. A similar matter came up - before V. Ramaswami. J., in W. P. No. 4110 of 1978 (Viswam, Granites, No. 1, Fourth Trust Link Street, Madras-N by its partner V. D. Venkataraish v. Collector of South Arcot District at Cuddalore - Judgment dated 6th March 1979). In that case the petitioner had applied to the Collector of South Arcot for permission to quarry black granite stones with effect from (1-9-1978 in S. No. 419/3 ' Semanagalam village, South Arcot strictly of an extent of 41 cents, being his patta lands. He also issued a notice under Rule 19 of the Tamil rules and regulations and enters into an. Agreement and Ray seigniorage and other dues due to Government as prescribed in the rules. His application was returned by the Collector with a note that 'the Commissioner and Secretary to Government Industries Department, Madras-9 may be addressed as the Government are the competent authority to sanction black granite quarry lease'. It is against that return the petitioner came to this Court with the Writ Petition for the issue of a writ of certiorarified mandamus praying for the quashing of the endorsement dated 31-8-1978 and directing the Collector to exercise his jurisdiction under Rules 19 and 22 of the Tamil Nadu Minor' Mineral Concession Rules 1959. The defensses of the Government was that in the light of Rule 8-C of the Tamil Nadu Minor Mineral Concession Rules, the competent authority in respect of grant of lease of black granite was the Government and that the Collector could not entertain any application. The learned Judge, after elaborately analysing the scope of the Tamil Nadu Minor Mineral Concession Rules, has pointed out, 'The rules have been divided into five sections. Section I deals with short title, extent, application and commencement. Section II is captioned as Government lands in which the minerals belong to the Government. The heading given in Section III is Rotary; lands and other lands on intermediary tenure in which Government have claim only to a share of the minerals. The heading given to Section IV is lands in which the minerals do not belong to Government. Section V contains miscellaneous provisions. Though the rules are numbered seriatim from I to 37, a group of rules is brought within each of the sections Thus in Section II, Rules 3 to 16 are contained and in Section 111, rules 17 to 34 are contained. According to the learned counsel for the petitioner, Rules 3 to 16 only are applicable to lease of quarrying right in Government lands and that, therefore, Rules' 8-B and 8-C. which are relied On by the Government Pleader, are applicable only in respect of lease of quarrying right in Government lands. But in respect bf the quarrying right hi private lands the rules continued in Section III alone are applicable and if construed, there is no restriction in respect of quarrying of black granites in private lands except that the Petitioner will have to apply for permission and agree to pay seignior age and comply with the other conditions mentioned in the rules and the agreement. The schemes of the rules do show that the rules in Section II are intended to apply for lease of quarrying right in Government lands and section III is applicable for exercise of the quarrying right by the owner of land either by himself or by leasing the same to third parties. The miscellaneous Provisions contained in Rules 36 and 37 are applicable to both categories. Even so, the argument of the learned Government Pleader for the respondent is that Rules 8-B and 8-C are wide enough to include the quarrying of black granites even in private lands and a restriction Is placed on the right of the person to quarry black granites.'

33. After observing as above, the learned Judge proceeded to state: 'In construing the rules, too much emphasis could not be laid on the heading given in the sections. We are, by and large, governed by the actual, wordings used in the Rules rather than the heading given in the sections, there is heading given even for each one of the rules apart from the main heading given in the sections. Thus though the rules could be construed as pack of rules irrespective of the grouping in sections still I am unable to agree with the respondent that R. 8-C in any way restricts the right of a now, ever of a private land to quarry black granites by himself. Accordingly am proceeding to consider Rule 8-B and 8-C as applicable for both private lands and Government lands. I am also Proceeding on the assumption that Rule 8-C is valid. I am referring to this aspect because in a number of write petitions, the validity of Rule C is raised and it has not been settled by this Court whether that rule is valid or not. Learned counsel for the petitioner wanted to Proceed in this cacoethes assumption that Rule 8-C is valid and still -wants to assert his right to quarry in his own land.

After extracting Rules B-B and 8-C, learned Judge proceeded to conclude:-

'1t may be seen from Rule 8-13 that the rule could be invoked notwithstanding anything to the contrary contained in Rules 8 and 8-A alone and it does not qualify the other rules and 8-A deal with leases quarrying right in Government lands. This rule, therefore, does not enable the Government Pleader to contend that the authority competent to grant lease in respect of quarrying of black granite from private lands is also the State Government Learned Government Pleader then relied on Rule 8-Cs a non obstante clause qualifying one of the rules. While the learned Government Pleader is well founded in his contention that Rule 8-C qualifies every one of the rules, contention that even in respect of cases where the owner wants to quarry black granites from his own land, be has to get Permission of the Government cannot be accepted. In my operations, it will apply only to cases where a private owner wants to lease no rights to quarry black granites is land to a third party. Rules 19and 33 do recognize the right of the owner to lease his quarrying right in his land to third parties. Rule 8-C will govern only such leasing of the rights, but will not apply to a case where the owner himself wants to quarry. Learned Government Pleader lays stress on clause (2) which enabled the Government to engage in quarrying granite themselves or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government. The latter part of this provision to grant leases for quarrying black granite will certainly refer to the lands belonging Government and not to Private lands. It is true the Government themselves may engage in drying black granite and that provision may enable the Government to take lease of the private right in Private lands as well. But the Government might or might note them selves in such activity. Clause (2) only an enabling provision and that could not control the right of the individual owner to quarry black granite in his own land as and when the Government chooses 'm exercise its right to quarry even in Private land, the Private owner may lose his right. But this also could be done only with the consent of the owner as the provisions restricted the right of the Government requiring the consent of the individuals to be obtained whatever may be the Provisions in Rule 8-C could not be applied to a case where that Appa Rao v. V. L. Varadaraj the owner wants to quarry black granite by himself. In such a case, the competent authority to give permission and impose such conditions as he may choose and also collect recoginised is the Collector and not the Government.' Admittedly the Government have not preferred any appeal against the above judgment of V. Ram swami, J. Further the learned acting Advocate General was not able to bring to our notice any consideration or circumstances to hold that the conclusion of the learned Judge is erroneous

34. Consequently, with regard to private lands where the owner himself wanted to quarry black granite, the decision of the learned Judge will apply, even on the assumption that Rule 8-C is valid. When that rule has been declared to be invalid by us, the ease of these petitioners becomes stronger. In these writ petitions petitioners will have a writ of declaration, since they were prevented from quarrying in their own lands only because of the impugned rule. These writ petitions will also stand allowed and there will be a declaration as prayed for in each case

35. In W. P. No. 2559 of 1979, though the petitioners originally applied to the Collector in respect of patta lands as well as poramboke land, the relief in the writ petition is restricted only to patta lands. In view of this, this writ petition will also stand allowed and the proceedings of the Collector dated 31-11978 will stand quashed and a writ of mandamus will issue to the said Collector to consider the application of the petitioners in respect of their patta lands, on merits, under Rules 19 and 22 of the Tamil Nadu

36. There will be noir associates in any of these petitions, (Writs of Mandamus etc. will follow)

37. W. A. No. 480 of 1979 - This appeal is preferred against the order of dismissal passed by V. Ramaswarai J. on 2-7-1979 in W. M. P. No. 3596 of 1979 in W. P. 2447 of 1979. As the main writ petition itself has been disposed of by our judgment in W. P. Nos. 4467 of 1977 batch, this day, this appeal has became infructuous and it is accordingly dismissed. There will be no order as to costs.

38. Order accordingly.


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