MEHROTRA. C. J. : As common questions of law have been raised in these two petitions they will be disposed of by one judgment The main question argued in these petitions is the constitutionality of The provisions of section 135 (f) of the Assam Land and Revenue Regulation. 1880 (hereinafter called 'the Regulation') arid Rule 190 of the rules framed in the exercise of the power under the aforesaid section (hereinafter called The Rules') (2) The- facts of the petition giving rise to rule No. 120 are that the petitioner has his houses on his land covered by dag No 305 of K. P. Patta No 65 of Saropather Bongaligaon. Khcremia Mouze in The district of Lakhimpur. Some of these shop houses were let out lo tenants The patta was originally annual but was converted into a periodic patta by an order of the Sub-Deputy Collector dated 8th December 1959 Out of The total area of the lag which was 2 bighas I katha 8 laches The petitioner owns I bigha 4 kathas 10 laches The Oil India Ltd which is arrived in these petitions as opposite party No 2. obtained letter of grant under Oilfield (Regulation and Development) Act 1948 for mining on 10th January 1901 over the prospering license (PL) in certain areas in Assam The substantial part of the area covered by the mining lease was acquired by opposite party No 2 There was some dispute between the opposite party No. Vhibition in titioner with regard to lessctr~acqu'ires an interesa "' rlag Nn ™fl to him The lessee is comf>4 the opposite party of any provision in the lei Commissionei undoi under section 108 of the Traflrant of possession over the land and in order to carry on mining activities. On the 2nd June 1954 the Deputy Commissioner, Lakhimpur, Dibrugarh issued a notice for general information stating therein that the opposite party No. 2 had applied to him for sanction of authority for enforcement of the rights under The mining lease. The petitioner was also served with the notice and on the 4th June 1964 an order was passed by the Deputy Commissioner under rule 190, the validity of which has been challenged by means of the-present petition.
The petitioner was also served with the notice and on the 4th June 1964 an order was passed by the Deputy Commissioner under rule 190, the validity of which has been challenged by means of the-present petition. The petitioner further alleges that on the 24th June 1964 at about 11.30 A.M., the Executive Sub-Deputy Collector, Naharkaliya Sri U. C. Neog with a few police officers and constables forcibly entered upon the. above 2 kathas of the land in spite of protests of the petitioner and the occupants and ousted the petitioner and the occupants from the land add gave delivery of possession of the land to the officials of the Oil India Ltd. The area of 2 kathas was fenced by the officials of The Oil India Ltd.. and the petitioner and the occupants were not allowed to remove their moveable (3) The first submission made by Or Medhi who appears for The petitioner is that The entire ambit of The power conferred on the Stale Government to frame rules under section 155 (f) of (lie Regulation, namely the granting of licenses, or the farming of the right, to work mines, stones, and lime quarries, salt-wells and oil-wells, ha.- been covered by the two Central Acts - The Oilfields ( Regulation and Development ) Act. 1948 (Act LII1 of 1948) and The Mines and Minerals (Regulation and Development) Act 1957 (Act 67 of 1957) and as The entire field of legislation on the subjects of mines and exploration of oilfields has been covered by those two Central Acts. The provisions of section 155 (1) of the Regulation stand superseded The contention is that under the Constitution of India Seventh Schedule.
The provisions of section 155 (1) of the Regulation stand superseded The contention is that under the Constitution of India Seventh Schedule. List I entry No. 53 provides for regulation and development of oilfields and mineral oil resources: petroleum and petroleum products, other liquids and substances declared by Parliament by law lo be dangerously inflammable and entry 54 provides for regulation of mines and mineral development to the extent to which such regulation an.4 development under the control of the Union is declared by Parliament by law to be expedient in the public interest Entry No 23 of List II of the Seventh Schedule gives power lo The Stale legislature to enact law for regulation of mines and mineral development, subject to the provisions of List 1 with respect to regulation and development under The control of The Union The Government of India Act 1935 entry No 36 of List I corresponded with entry No. 54 of List No 1 of the Seventh Schedule of the Constitution and entry No 23 of List II of The Seventh Schedule of the Constitution is similar to entry No 23 List II of the Constitution Vet of 1935 As the Central Government has exercised powers in the year 1948 under item 36 of the List No I of The Government of India Act 1935 and in the 1957 under item 54 of List I of the Seventh Schedule of the Constitution, the power of all State Legislatures to enact law relating to those subjects has vanished and any Act passed before or after the Constitution or even the Government of India Act 1935 by the State Legislatures will have no effect. Tins argument assumes that the Regulation will be deemed to be an Act passed by the Assam Legislature in the exercise of its powers under either entry 23 of List II of the Government of India Act 1935 or entry No. 28 of List II of the 7th Schedule of the Constitution. The Assam Land and Revenue Regulation was passed in the year 1886 by the Governor General in Council in accordance with the provisions of section 1 of the Government of India Act 1870.
The Assam Land and Revenue Regulation was passed in the year 1886 by the Governor General in Council in accordance with the provisions of section 1 of the Government of India Act 1870. Section 3 (7) of the General Clauses Act defines a Central Act as follows:- " 'Central Act' shall mean an Act of Parliament and shall include- (a) an Act of the Dominion Legislature or of the Indian Legislature passed before the com mencenienl of the Constitution, and (b) an Act made before such commencement by the Governor General in Council or the Governor General acting in the legislative capacity. " Thus the Regulation will be regarded as a Central Act and no question of the taking away of the power of the State Legislature as soon as the declaration is made by Parliament either under entry 54 -of List I of the Seventh Schedule of the Constitution or by the competent legislature under entry 36 of List I of the Government of India Act will arise in regard to the Regulation. The Regulation cannot be said to have been enacted in the exercise of the powers given to the Assam Legislature either under entry 23 of the List II of the Constitution or under entry 23 of List II of the Government of India at 1935, nor can there be any question of repugnancy between the two.
The Regulation cannot be said to have been enacted in the exercise of the powers given to the Assam Legislature either under entry 23 of the List II of the Constitution or under entry 23 of List II of the Government of India at 1935, nor can there be any question of repugnancy between the two. On the proper examination of the provisions of the Regulation it will appear that in pith and substance it is an Act relating to land and thus neither the Regulation as a whole nor section 155 (f) will be deemed to have been superseded by passing of the Acts of 1948 and 1957 (4) Section 6 of the Regulation provides " 6 No right of any description shall be seemed to have been, or shall be acquired by any person over any land to which this Chapter applies, except the following (a) rights of proprietors, landholders tm: settlement-holders other than landholders, as defined in this Regulation, and other rights acquired «n manner provided by this Regulation; (b) rights legally derived from any right mentioned in clause (a); (c) rights acquired under sections 26 and 27 of the Indian Limitation Act, 1877 (d) rights acquired by any person as tenant under the Rent Law for the time being in force Provided that nothing in this section shall be held to derogate from the terms of any lea so granted by or on behalf of the Crown." Section 9 of the Regulation lays down as follows: - " 9. A landholder shall have a permanent, heritable and transferable right of use and occupancy in his land, subject to- (a) the payment of all revenue, taxes, cesses and rates from time to time legally assessed or imposed in respect of the land; (b) the reservation in favour of the Crown of all quarries and of all mines, minerals and mineral oils, and of all buried treasure, with full liberty to search for and work the same, paying to the landholder only compensation for the surface damage as estimated by the Deputy Commissioner; and (c) the special conditions of any engagement into which the landholder may have entered with the Crown " (5) A close examination of the provision.-of I he Assam Land and Revenue Regulation will reveal that the land belongs to the Government and it is the State Government which confers right on various landholders.
The Government. however, under section 9 reserves Its rights with regard to the mines. This section means that any right conferred on the landholders will be subject to the right of the Government to work the mines and thus if the Government makes a rule providing for a right to the lessees of the right to work the mines or oil fields, to enter the land which has been settled by the Government with any third party it is only the power of the Government to give effect to the provisions of the Regulation.
Any rule framed laying down the circumstances under which a third party can enter on the land which has been settled with the landholder by the Government, cannot be said to he an act relating to mines or minerals It is essentially and in substance an act relating to land The scope and the field covered by the Acts of 1948 and 1957 is entirely different from that of the Regulation and thus there can hp no repugnancy between the two Acts (6) Reliance has been placed on the case of State of Orissa v M. A. Tulloch and Co reported in AIR 1964 SC 1284 The question which was canvassed in that case was whether the Orissa Mining Areas Development Fund Act (27 of 1952) is superseded by Mines and Minerals (Regulation and Development) Act (1957) and it was held that the Orissa Mining Areas Development Fund Air I has been superseded by the Mines and Minerals (Regulation and Development) Act 1957 That case was decided on the language of entry 54 of List I of the Seventh Schedule and entry 23 of List II of the Seventh Schedule It was held that after the declaration was made by Parliament as required under entry 54 of List I of the Seventh Schedule, the power of the State Legislature to en act any law under entry 23 List II of the Seventh Schedule to the Constitution is taken away, though the State Legislation may have been passed prior to or after the Central Act of Parliament The following passage in the judgment sets out the ratio of that decision : " 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 has 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.
" Thus this case only lays down that by the declaration made by Parliament the power of the State legislature under entry 23 must he hold to have been superseded. In the present case the Regulation does not rest on the existence of power under entry 23 of List 11 and thus if the power of the Assam Legislature under entry 23 of List II has been in ken away by enacting the Act of 1957 the Regulation cannot be said to be destroyed. Tie Regulation is a Central Act by virtue of the Definition under the General Clauses Act. It is an existing Law within the meaning of the Constitution and thus it does no! derive its existence by virtue of the power conferred on The Assam Legislature under fit her entry 23 of List II of the Seventh Schedule of the Constitution or entry 23 of List 11 of the Government of India Act 1935. Even on the examination of the provisions of the Regulation it is an Act whether may come under entry 18 of the List 11 and not entry 23. Even if it may be regarded as an Act passed by the Assam 1egeslalure it cannot he said to be an Act passed in the exercise of its powers under entry 23 "f List 11 (7) In the case of Prafulla Kumai Mukherjee v Rank of Commerce Ltd.. Khulna.
Even if it may be regarded as an Act passed by the Assam 1egeslalure it cannot he said to be an Act passed in the exercise of its powers under entry 23 "f List 11 (7) In the case of Prafulla Kumai Mukherjee v Rank of Commerce Ltd.. Khulna. reported in MR 1947 PC 60 Lord Porter has approved the following observation of Sir Manrice Gwyer C. ,J in the case of Subramanvan Chettiar v Muttuswami Goimdan, reported in 1940FCR 188 (AIR 1941 FC 47) :-- "It must inevitably happen from time to lime that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere Hence the rule which has been evolved for the Judicial Committee whereby the impugned statute is , examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this list or in that " Thus in order to determine whether the Regulation comes under entry 23 of entry 18 the pith and substance of the Regulation will have to be examined and even assuming that section 155 (f) of the Regulation incidentally entrenches upon the field covered by entry 23. it cannot be regarded to be a law enacted under entry J3 and thus even if the power of the State Legislature to enact under entry SN& has been taken away by enactment of the Act of 1957 consequent upon the Parliamentary declaration, it cannot be said that the Regulation has been superseded. There is also no inconsistency between the provisions of section 156 (f) of the Regulation and the Act of 1948 and the Act of 1957 as the fields covered by these legislations are different. The provision of section. 155 (f) cannot also be said to have been repeated impliedly by the Act of 1948 or the Act of 1957.
There is also no inconsistency between the provisions of section 156 (f) of the Regulation and the Act of 1948 and the Act of 1957 as the fields covered by these legislations are different. The provision of section. 155 (f) cannot also be said to have been repeated impliedly by the Act of 1948 or the Act of 1957. (8) It was then contended that so far as the section 155 (f) of the Regulation employers the Government to make rules for granting of licenses to work mines and oil-wells, it is in consistent with the provisions of the Act of 1948 and the Act of 1957 which expressly lay down that no mining licenses can be granted except in accordance with the provisions of those Acts and thus to the extent of this conflict the Acts must prevail over the Regulation. There are two-fold answers to this contention. Firstly rule 190 does not deal with the granting of the licenses at all and thus rule 190 cannot be said to be in conflict with the provisions of the Act of 1948 and the Act of 1957. and secondly rule 190 has been enacted in pursuance of the general power conferred on the Slate Government under section 155 (h) which gives power to the State Government to frame rules generally to carry out the provisions of this Regulation Merely, because the rules Nos 189 and 190 arc in the heading indicated to be rules framed in the exercise of powers under section 155 (f). it cannot be said that their validity cannot be upheld if the power is there under any other provisions of section 155 of the Regulation. The heading of Chapter VIII in which rules 189 and 190 of the Regulation are provided for, is as follows: "Rules framed under section 155 (f) regulating the entry by mining licenses on settled land " Thus the purpose of these rules is to provide for the entry of the licensees on the lands which are settled by the Government with 'he settlement-holders Thus the Rules are essentially to give effect to the provisions of section 9 of the Regulation There is thus no force in the contention that rule 190 is ultra vires (9) The next point urged is that rule 190 has not Peen complied with.
Rule 190 reads as follows ; 190 Where the surface of any land cover ed by a mining lease is in the occupation of any person other than the lessee (i) The lessee shall have the liberty an I power to enter upon such lands in the exercise of the rights granted by the lease; provided that without I he consent of the occupier, and in the absence of such consent without the written authority of the Deputy Commissioner, he shall not enter into any building, or structure, or into any enclosed yard or garden; (ii) no surface operations shall be carried on in or upon the site of any dwelling house or in such a manner as to injure any buildings structures, properly or rights of other persons without their consent or, in the absence of such consent, without the written authority of the Deputy Commissioner; (iii) the Deputy Commissioner shall not grant authority under clause (i) or (ii) unless he is satisfied that the rights conferred by the lease cannot be exercised except by the grant of such authority; (iiia) on receipt of an application for authority to enter upon any land or to injure any property under clause (i) and (ii).
the Deputy Commissioner shall immediately publish at his office and on the land concerned a notice that such authority has been applied for; (iv) no land which is in the occupation of ajiy person other than the lessee shall be used for surface operations if any other land not so occupied is suitable and available for surface operations: (v) she lessee shall not without the express sand ion »1 the Deputy Commissioner cut down or injure any timber of trees on such land, hi.t may without such sanction clear away any brushwood or undergrowth which interfere with The exercise of the rights granted by ut lease; (vi) The Deputy Commissioner may assess or cause to be assessed any damage or injury which may be done by the lessee to the property of the occupier of such land or of any other person paid by the lessee In assessing any damage or injury under Ibis clause the assessor may leave out of account the value of any buildings erected or improvements made by the occupier of the land after he has granted consent under clause (i) or (ii) or in the absence of such consent, after the date of the publication of the notice required by clause (iiia) We have carefully considered the allegations in the petition and the counter affidavit and in our opinion ii cannot be said that the provisions of rule 190 requiring notice have not been complied with in the present case the order passed and the procedure adopted by the Deputy Commissioner was in compliance with the provisions of rule 190 (10) The next point urged is that tin order is a colourable exercise of power under Rule 190 inasmuch as although the Deputy Commissioner has been granted power to confer an authority on the lessee to enter upon the land for the purpose of discharging his functions under the lease, he has virtually ordered dispossession of The petitioner and thus he has deprived the petitioner of his right to property.
(11) Rule 190 (1) gives power to the Deputy Commissioner to issue a written authority in favour of a lessee under which he can enter the land for the exercise of the power conferred on the lessee under the lease Such |an authority neither deprives the petitioner of his properly, nor can it be said to be an unreason able restriction on the power of the petitioner to hold his property Under section 9 of the Regulation the landholder acquires a right to the property subject to the right of The Government regarding the quarries and mines, minerals and mineral oils. There is thus no .substance in the contention that rule 190 in so far as it confers a right on the Deputy Commissioner to issue the written authority to the lessee to enter the land is violative of any of the fundamental rights conferred on the petitioner. The order in the present case has been passed in accordance with the provisions of rule 190 It only authorizes the lessee to enter upon the land in 'be exercise of the rights granted by the lease and on the strength of the authority conferred under the order The entry made for the purposes of carrying out the purpose of the lease may sometimes amount to dispossession of the landholder As pointed out in The counter affidavit, the wire fencing had to be put to protect the machinery of the Oil Company stored the unless the machinery is brought on the land it will not possible for The lessee to carry .m the operations and if for that purpose the petitioner is dispossessed from The land, it cannot be said 'hat The exercise of The power by the Deputy Commissioner is a colourable exercise In The result therefore, there is no force in the two petitions mid they are rejected. But the parties will bear their own costs of the petitions. Petitions dismissed