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1968 DIGILAW 141 (KER)

COLLECTOR OF CANNANORE v. VASU

1968-07-08

M.S.MENON, P.GOVINDA NAIR

body1968
Judgment :- 1. The appellants before us are the Collector of Cannanore and the State of Kerala. They challenge the correctness of the decision of Isaac J. in O. P. No. 870 of 1966 by which the learned judge held that Ext. P-1 dated 31-12-1965 was unsustainable, and quashed it by a writ of certiorari under Art.226 of the Constitution. 2. By Ext. P-1 the Collector had imposed a penalty on the respondent and two others jointly and severally under R.22 of the Madras Minor Mineral Concession Rules, 1956, for the quarrying of granite stones in violation of R.20 of the said Rules. R.19 of the Rules which is referred to in R.20, and R.20 and 22 read as follows: "19. Rates of seigniorage fee. The quarrying of any mineral on a large scale or for other than bona fide domestic or agricultural purposes shall be subject to the payment of seigniorage fee at the rates prescribed in Appendix I to these rules: Provided that this rule shall not apply to quarrying for Government or on behalf of the Government or for bona fide public purposes when the compensation paid to the registered holder therefor does not exceed the amount required to restore the land to a state fit for cultivation. 20. Procedure for quarrying in ryotwari lands: In the cases referred to in R.19, the registered bolder or the tenant or lessee in actual possession of the land or the contractor who obtains the permission of the registered holder or tenant or the lessee for quarrying in the land shall give previous notice to the Tahsildar or the Deputy Tahsildar concerned, specifying the minerals in respect of which and the field in which quarrying operations are proposed to be undertaken. The Tahsildar or the Deputy Tahsildar concerned will himself issue permits for quarrying in cases where the seigniorage fee if levied, would not exceed Rs. 25. In cases where the fee exceeds Rs. 25 he should submit the notice to the Collector and inform the party accordingly, A map or a sketch of the area should also be submitted by the registered holder if one is called for by the Tahsildar or Deputy Tahsildar concerned or the Collector as the case may be. 25. In cases where the fee exceeds Rs. 25 he should submit the notice to the Collector and inform the party accordingly, A map or a sketch of the area should also be submitted by the registered holder if one is called for by the Tahsildar or Deputy Tahsildar concerned or the Collector as the case may be. In default of submission of such a map or sketch the Tahsildar or the Deputy Tahsildar or the Collector shall have one prepared under his orders and recover the cost from the registered bolder concerned. 22. Penalty for unauthorised quarrying in ryotwari lands. Whenever quarrying operations are done without giving notice as required by R.20, the registered holder, the persons (tenant or lessees) in actual possession of the land and the contractor shall be jointly and severally liable to pay enhanced seigniorage fee or acreage assessment upto a maximum of five times of the normal rate. Explanation: The question whether quarrying operations are carried on, on a large scale within the meaning of this rule shall be determined by the Collector of the district according to the circumstances thereof. Note 1. This rule shall not affect in any way the right, which all holders of lands held on ryotwari tenure possess; of digging wells in their lands and of disposing of the gravel and stones which may be thrown up in the course of excavation. Note 2.- The word 'registered holder' occurring in this rule shall include mulgenidars and walawargdars in the South Kanara district." 3. R.18 to 35 of the Madras Minor Mineral Concession Rules, 1956, deal with "ryotwari lands and other lands on intermediary tenure in which Government have claim only to a share of the minerals". It is common ground that what we are dealing with are ryotwari lands. It is also not disputed that R.19 is attracted to the quarrying with which we are concerned. The only controversy is as to the operative character of the Madras Minor Mineral Concession Rules, 1956, after the amendment of the Mines and Minerals (Regulation and Development) Act, 1948, by the Mines and Minerals (Regulation and Development) Act, 1957. 4. The Madras Minor Mineral Concession Rules, 1956, were made under S.5 and 8 of the Mines and Minerals (Regulation and Development) Act, 1948, read with the notification of the Ministry of Natural Resources and Scientific Research, SRO. No. 2191 dated 19-11-1953. 4. The Madras Minor Mineral Concession Rules, 1956, were made under S.5 and 8 of the Mines and Minerals (Regulation and Development) Act, 1948, read with the notification of the Ministry of Natural Resources and Scientific Research, SRO. No. 2191 dated 19-11-1953. S.5 of the Act deals with the power to make rules as respects mining leases, and S.8 is in the following terms: "The Central Government may, by notification in the Official Gazette, direct that any power exercisable under this Act shall be exercised, subject to such conditions if any, as may be specified therein by such officer or authority as may be specified in the direction." 5. The SRO. was issued in pursuance of the power of delegation conferred by S.B. It reads as follows: "In exercise of the powers conferred by S.8 of the Mines and Minerals (Regulation and Development) Act, 1948 (LIII of 1948), the Central Government hereby directs that the power conferred upon it by S.5 of the said Act shall, in so far as it relates to the making of rules to regulate the extraction of minor minerals as for the time being defined in clause (ii) of R.3 of the Mineral Concession Rules,1949 be exercisable also by all State Governments within their respective States." (Gazette of India, Extraordinary, Part II-S. 2, No. 301 dated the 24th November 1953, page 1979) 6. It is true that the Mines and Minerals (Regulation and Development) Act, 1957, confined the operation of the Mines and Minerals (Regulation and Development) Act, 1948, to the regulation and development of oilfields and that the 1948 Act thus became unavailable to sustain the Madras Minor Mineral Concession Rules, 1956, on and from the 1st June 1958, the date on which the 1957 Act came into force. S.15 of the 1957 Act, however, provided as follows: (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 (1) any rules made by a State Government regulating the grant of prospecting licences and mining leases in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force." 7. (2) Until rules are made under sub-section (1) any rules made by a State Government regulating the grant of prospecting licences and mining leases in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force." 7. Granite is a minor mineral as defined in S.3(c) of the Mines and Minerals (Regulation and Development) Act, 1957, and no rules had been made at the relevant time by the State Government under sub-section (1) of S.15. In these circumstances we do not see any reason why the Rules with which we are concerned namely, R.20 and 22 of the Madras Minor Mineral Concession Rules, 1956, which were in force immediately before the commencement of the Mines and Minerals (Regulation and Development) Act, 1957, should not be considered as continuing in force by virtue of sub-section (2) of S.15 of that enactment. 8. The contention on behalf of the respondent is that sub-section (2) of S.15 saves only rules regulating the grant of "prospecting licences and mining leases" and that we are not concerned in this case with either prospecting licences or mining leases. It is true that we are not concerned with the grant of a prospecting licence; but we are, in the view we take, concerned with the grant of a mining lease. 9. The expression, "mining lease" is defined in S.3(c) of the Mines and Minerals (Regulation and Development) Act, 1957. The definition reads as follows: "'mining lease' means a lease granted for the purpose of undertaking mining opera -tions, and Includes a sub-lease granted for such purpose." The expression "mining operations" is also defined, in S.3 (d) of the Act. The definition is: mining operations' means any operations undertaken for the purpose of winning any mineral." 10. R.23 of the Madras Minor Mineral Concession Rules, 1956, provides for the execution of an agreement in the form set out in Appendix IV of the said Rules and R.34, of an agreement in the form prescribed in Appendix V. R.35 says: 'The agreements executed in forms prescribed in Appendixes IV and V are compulsorily registerable under S.17 (1) of the Indian Registration Act, 1908 the former at the cost of the registered holder and the latter at the cost of the registered holder and his lessee." 11. The first clause in Appendix IV itself makes it clear that the agreement contemplated is nothing but a lease to carry on mining operations. It reads as follows: "The registered holder shall be at liberty at all times during the period of the lease to carry on mining operations for in the said lands in a workmanlike manner and to deposit mining waste on the said lands and shall at all times be answerable and accountable to the Government for all acts and defaults by any of his nominees, servants or agents in carrying on such operations or in making such deposit." 12. As pointed out by the Supreme Court in Kunhikoman's Case, 1962 KLT. (SC.) 42, a ryotwari pattadar could relinquish the land covered by his patta in favour of the Government and he was "never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor". The character of the ryotwari tenure thus sketched provides the foundation for the need and the demand for obtaining a mining lease from the Government before quarrying operations are conducted by a ryotwari pattadar or any person claiming under him. 13. In the light of what is stated above we must hold that R.20 and 22 of the Madras Minor Mineral Concession Rules, 1956, do relate to the grant of mining leases in respect of minor minerals, and that they continue to be in force under sub-section (2) of S.15 of the Mines and Minerals (Regulation and Development) Act, 1957. It follows that Ext. P-1 has to be sustained and that the decision under appeal has to be reversed. We do so, but in the circumstances of the case without any order as to costs. Allowed.