Haradhan Mandal v. STATE OF WEST BENGAL — 1973 DIGILAW 246 (CAL)

JUDGMENT 1. The petitioner claims to be the owner and occupier, by purchase through registered kobalas, of certain plots of and which form the Char land of the river Hooghly. The said plots are recorded in the name of the petitioner and the State Government is said to have been realising rents from the petitioner in respect of the said plots of land. 2. The petitioner started a brickfield in the said plots of land in the year 1965 under a partnership firm styled as mondal and Co., Kachari Ghat, Barabazar, chinsura, Hooghly. It is stated that although the said plots are recorded in the settlement records as agricultural holding, the said lands have however been converted into non-agricultural hand subject to the payment of rent at double the existing rent under Section 72 of the West Bengal Non-Agricultural tenancy Act, 1949 by order of the district Magistrate, Estate Acquisition, madia, being respondent No. 2. The petitioner claims that he does not dig any earth of the brick-field land but procures silt by allowing the river water to flood the said brick-field in the monsoon months. The silt thug accumulated is used for moulding bricks after it is mixed with proportionate quantities of sand, water and other materials by human labour and skill. It is stated that no earth of the brick-field is dug or excavated. 3. The respondent No.2 served on the petitioner a notice dated 6th March, 1968, requiring him to show cause why he should not be proceeded under Section 4 (2b) of the West Bengal Land Reforms act, 1955 (hereinafter referred to as the land Reforms Act) as it was alleged that the petitioner was digging/using earth of the leasehold land for the purpose of manufacture of bricks without the previous permission in writing of the State Government under Section 4 (2a) of the Land Reforms Act. By another notice dated 1st April, 1968, the respondent No. 2 called upon the petitioner to show cause why he should not be prosecuted for violation of Rule 25 of the West Bengal Minor Minerals rules (hereinafter referred to as the rules) read with Rule 26 and why he should not be penalised by way of imposition of fine under Section 4 (2b) of the Land Reforms Act. On cause being shown, a fine was imposed which was subsequently reduced on representation. On cause being shown, a fine was imposed which was subsequently reduced on representation. The respondent No. 2 issued a permit under 4 (2a) of the Land Reforms Act to the petitioner "to dig or use earth or clay" from the said land on certain terms and conditions. One of the conditions was that he will not quarry send or dig or use any earth or clay from his land except under a lease granted under the mines and Minerals (Regulation and development) Act, 1957 (hereinafter referred, to as the Act. By another notice dated 6th March, 1970, the petitioner was directed to apply for a mining lease in respect of the said brick-field. The petitioner was also called upon to deposit certain sums by way of royalty for the bricks, which was paid by him. As the petitioner did not obtain any lease or licence under the Act and the rules a notice was issued to him by the respondent No. 2 to show cause why action should not be taken against him for the breach of Rules 25 and 26 of the Rules. The petitioner in this application has challenged (he legality of the notice on various grounds. 4. AN affidavit of Krishna Gopa. 1 basak has been filed on behalf of the respondent Nos. 1 to 3. It is stated that the petitioner has brick manufacturing business for commercial purposes, and brick-earth is obtained by him by excavation of earth which comes under the purview of minor minerals. It is further stated that by a notification issued by the Central Government brick-earth has been declared to be a minor mineral under the Act. It is also stated that "ordinary clay" being minor mineral order the Act, the using of earth mixed with silt amounts to clay and as such without obtaining mining lease under the act and the Rules the petitioner cannot carry on the brick manufacturing business. It is also stated that "ordinary clay" being minor mineral order the Act, the using of earth mixed with silt amounts to clay and as such without obtaining mining lease under the act and the Rules the petitioner cannot carry on the brick manufacturing business. At the time of hearing of the rule the following points have been raised by the learned Counsel for the petitioner: (1) Section 3 (e) of the Act in so far as it authorises the Central Government to declare by a notification any other mineral as "minor mineral" suffers from the vice of excessive delegation of legislative power, (2) Section 15 of the Act in so far as it authorises the State Government to make rules for regulating the grant of prospecting licences and mining leases in respect of all minor minerals confers upon the executive wide and maked and uncanalised power without laying down any norm or standard for the guidance of the exercise of such power and as such Section 15 also suffers from the same vice of excessive delegation of legislative power. (3) Even assuming that the section under which the State Government has framed rules is a valid one, as the petitioner remains the owner of the sub-soil right including the minerals, until there: is a vesting of such right in the State, the State has no authority or jurisdiction to insist on obtaining a lease of: such right in minerals. (4) Brick-earth is not ordinary clay within the meaning of Section 3 (e) of the Act. (5) Brick-earth is not a mineral and as such the notification declaring brickearth to be a "minor mineral" is without jurisdiction. (6) Lastly, it was contended that the silt out of which brick is manufactured is neither brick-earth nor clay and as such the respondent No. 2 has no competence and jurisdiction to insist upon obtaining a lease under the Act and the rules. 5. TO examine these several contentions raised in this application it is necessary to analyse the provisions of the relevant Acts and the Rules. Section 2 of the Act declares that it is expedient in the public interest that the Union. should take under its control the regulation of mines and the development of minerals to the extent provided in the act. The definition of mineral under section 3 (a) includes all minerals except mineral oil. Section 2 of the Act declares that it is expedient in the public interest that the Union. should take under its control the regulation of mines and the development of minerals to the extent provided in the act. The definition of mineral under section 3 (a) includes all minerals except mineral oil. Section 3 (e) of the Act: defines "minor minerals" to mean building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Governments may, by notification in the official gazette, declare to be a minor mineral. Sections 4 to 9 of the Act deal with the general restrictions on undertaking prospecting and mining operations. Sections 10 to 12 deal with the procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government. Section 13 gives the power to the Central government to make rules in respect of minerals. The State Government has been vested with the power to make rules in respect of minor minerals. The state Government tinder Section 15 (1) may, by notification in the Official gazette, make rules for grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. The provision relating to the grant of prospecting licences or mining leases embodied in sections 4 to 13 of the Act will not apply to minor minerals. The regulation of the grant of prospecting licences and mining leases of minor minerals is left with the State Government. In exercise of the power under Section 15 (1) of the act, the West Bengal Minor Minerals rules, 1959, have been framed regulating the grant of mining leases in respect of minor minerals and for purposes connected therewith. Rule 3 (a) defines a ''mineral" to mean a minor mineral as defined in Section 3 (e) of the Act. The central Government in exercise of the power conferred by Section 3 (e) of the act declared by a notification No. 436 dated 29. 5. 1958 the following minerals to be minor minerals : "boulder, shingle, chaladony, pebbles used for ball mill purposes only, lime shell, kankar and lime stone for lime burning, murrum, brick-earth, fuller's earth, bentonite road metal, reh mattislate and shale when used for building materials". 5. 1958 the following minerals to be minor minerals : "boulder, shingle, chaladony, pebbles used for ball mill purposes only, lime shell, kankar and lime stone for lime burning, murrum, brick-earth, fuller's earth, bentonite road metal, reh mattislate and shale when used for building materials". The Schedule 1 of the Rules framed by the State Government fixes royalty at a certain rate for ordinary earth for brick making. The said Schedule was amended by a notification No. 4695-Mine date 30. 9. 1969 issued by the state Government. As a result of the said amendment, brick-earth has been substituted for "ordinary earth for brick-making". As a result of the said amendment royalty is now imposed for brick earth at the specified rate. Rule 25 of the Rules provides that any person extracting any minor mineral without a proper lease or licence granted under the Rules or in contravention of Rule 26 shall be punishable with imprisonment for a term which may extend to three months or with fine. Rule 26 provides that no lease or licence is required to be taken by a person who extracts any minor mineral from his own land for the specified purposes or for his personal use. 6. In the context of these legislative provisions, the points formulated earlier are now to be dealt with. The first point raises the question as to whether the power conferred upon the Central government to declare any other mineral, as "minor mineral" constitutes an excessive delegation of the legislative power. The technique of delegated legislation provides for a useful, inevitable and indispensable mechanism which is adapted to the functions of a modern State which is wedded to a socialistic pattern of society through democratic means. Law in such a society is accepted as a process of social engineering, as an instrument of socio-economic changes and development in the democratic society. There was a time when delegated legislation was viewed with great distrust. Lord hewart in his "new Despotism" (1929)criticised it as undemocratic and an extention of the despotic power of the administration. Law in such a society is accepted as a process of social engineering, as an instrument of socio-economic changes and development in the democratic society. There was a time when delegated legislation was viewed with great distrust. Lord hewart in his "new Despotism" (1929)criticised it as undemocratic and an extention of the despotic power of the administration. With the expansion of the functions of the State in the economic and social sphere, and the consequent emergence of the new experiment of planning and control of the economic and social life, with the complexity of modem administration, with the scientific discoveries and technological advances, there has been a. noticeable shift in political, social and economic ideas as a result of which delegated legislation is now considered as an expeditious technique which every modern legislature adopts to meet unforeseen contingencies and to facilitate adjustments that may be called for when the legislature embarks upon various massive schemes of planning and control. The question today is not whether there should be delegated legislation, but what safeguards are to be necessary for the control of such a technique within the constitutional limits. The very basis on which the philosophy of our Constitution is founded supplies the key to the solution of the problems. In the case of Delhi Lows Act (A.I.R. 1951 S.C. 332) although it was conceded that the doctrine of separation of powers cannot be imported into our Constitution, yet the doctrine of constitutional trust was applicable to our Constitution since it lay at the foundation of representative democracy and that accordingly the legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be. In other words a Legislature cannot delegate the (trust reposed in it and strip itself of its essential function and vest the same in an extraneous authority. The essential legislative functions are the determination of the legislative policy and its formulation as a rule of conduct. The question whether or not a particular piece of legislation suffers from the vice of excessive delegation must be determined with reference to the facts and circumstances in the back ground of which the provisions of the statute impugned have been enacted. The question whether or not a particular piece of legislation suffers from the vice of excessive delegation must be determined with reference to the facts and circumstances in the back ground of which the provisions of the statute impugned have been enacted. If on a review of all the facts and circumstances and of the relevant provisions of the statute the court is in a position to say that the Legislature had clearly enacted the underlying principles of the legislation and laid down criteria and proper standards but had left the application of those principles and standards to individual cases in the hand of the executive, it cannot be said that there is an exclusive delegation of power by the Legislature (Mahammed Ali and ors. v. Union of India (A.I.R. 1964 S.C. 980) In other words when a challenge to the vires of any statute on the ground of excessive delegation is made, it is necessary to enquire (i) whether the impugned legislation involves the delegation of an essential legislative function or power (ii) whether the Legislature has enunciated its policy and principle and has afforded guidance for carrying out the said policy to the delegate (18) Vasamlal Maganbhai v. State of Bombay, A.I.R. 1961 S.C. 4. In ascertaining whether such guidance has been afforded by the Legislature, it is legitimate to consider1 the statement of the principles contained, in the preamble to the Act as well as in the material provisions of the Act itself. In the case of (7) Hamdard dawakhana v. Union of India A.I.R. (1960) S.C. 554, the provision which empowers the Central Government to add to the list of diseases falling within the mischief of Section 3 of the Drugs; and Magic Remedies (Objectionable advertisements) Act, 1954 "any other diseases or condition which may be specified in the rules made under the act" was held to suffer from the vice of excessive delegation and was struck down. In that case it was held that the impugned words were vague and Parliament had not established any criterion nor, laid down any standard nor prescribed any principle on which a particular disease or condition was to be specified in the Schedule. Each case has to be considered on its own, facts and circumstances in the back ground of the relevant statutory provisions. In the case of (5) Edward Mills Co. Each case has to be considered on its own, facts and circumstances in the back ground of the relevant statutory provisions. In the case of (5) Edward Mills Co. v. State of ajmer A.I.R. (1955) S.C. 25 the validity of section 27 of the Minimum Wages Act which gives to the appropriate Government the power to add either part of the Schedule to the Act any employment in respect to which it is of opinion that minimum wages shall be fixed, was upheld. In the case of (12) Mohammed Ali v. Union of India (vide supra) the provision authorising the Central government to bring within tire purview of the Employees Provident Fund Act, 1952, such establishment as it might specify was declared to be constitutionally valid. On a consideration of the preamble of the statute and the relevant provisions of the Act the legislative policy was found to be discernible in clear and unambiguous terms in those impugned Statutes. Applying these tests, in my view, the impugned section does not transgress the limit of delegation of legislative power enunciated by the Supreme Court in a number of decisions. The title, the preamble to the Act and an analysis of the various provisions of the Act leave no room, for doubt as to the underlying policy and the object of the particular legislation. Its object is to regulate all mines and develop all minerals under the control of the Union. The definition of "minor minerals" under Section 3 (e) of the Act is an artificial one. It has divided the minerals into two sections so that their development may be regulated separately by two authorities, the State Government in respect of "minor minerals" and Union government in respect of all minerals other than minor minerals. The power which has been conferred upon the central Government under Section 3 (e) of the Act is to be exercised in accordance with and subject to the above policy and purpose of the Act. Sec. 28 of the Act requires all rules made and notifications issued by the Central government under the Act to be laid for not less than 30 days before each house of Parliament after they are made or issued and Parliament has been given the power to make such modification of the said rules and notifications as it thinks fit. Sec. 28 of the Act requires all rules made and notifications issued by the Central government under the Act to be laid for not less than 30 days before each house of Parliament after they are made or issued and Parliament has been given the power to make such modification of the said rules and notifications as it thinks fit. This makes it clear that parliament has in no way abdicated its authority, but is keeping vigilance and control over its delegate (See (6) D. S. Garwal v. State of Punjab and Another A.I.R. 1959 S.C. 512. In the background of these legislative provisions, the underlying policy and purpose of the act, the control retained by the Parliament under section 28 of the Act, I am unable to accept the contention that section 3 (e) of the Act suffers from any vice of excessive delegation of legislative power. The second point urged also raises the constitutionality of Section 15 of the Act which confers upon the State government power to make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals. The charge of clothing the executive with naked and uncanalised power without laying down any norms or standards for the guidance of the exercise of such power cannot be sustained in view of what has been noticed earlier while discussing the first point. The rules framed by the State government follow more or less the same principles and patterns of the rules made by the Central Government under Section 13 of the Act. The principle underlying the present piece of legislation the purpose and the policy of the Act which are to be gathered from the title, preamble and the various provisions of the act afford a clear and sufficient guidance for the exercise of the power by the State Government to whom the such power has been delegated. The ambit sand the character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the frame work of that policy. The power to frame rules under Section 15 of the Act is not a wide, naked or uncanalised power. The ambit sand the character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the frame work of that policy. The power to frame rules under Section 15 of the Act is not a wide, naked or uncanalised power. Such power is to be exercised for the specified purposes of the regulation of the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. The power so conferred upon the delegates is a plenary one subject to the underlying policy and purpose of the Act and circumscribed by the limits imposed under section 15 of the Act. An attempt was made to challenge the validity of this power on the ground that a general power to make rules has been conferred under section 15 of the Act upon the State Government while in the case of such power when conferred upon the Central Government under section 13, specific heads for which the delegates may make rules have been laid down under Section 13 (2) of the act. Such a contention, in my view, does not stand the test of a closer scrutiny. The purpose of specific head is only illustrative and does not restrict the generality of the rule ranking power conferred upon the delegate when such plenary power is given to make rules for the purposes of the Act. The very fact that specific heads for which the state Government may make rules have not been enumerated, does not, in my view, cast any reflection upon the validity of the general power conferred under Section 15 of the Act so long as the limits of delegation are not transgressed. 7. I shall now deal with point No. 3 as formulated earlier. The contention that the petitioner having paid rents to the State Government after the West Bengal Estate Acquisition Act (hereinafter referred to as the Acquisition Act)came into force is not only the owner and occupier of the disputed surface land but also is the owner of the sub-soil rights including the minerals, does not bear a close scrutiny. The contention that the petitioner having paid rents to the State Government after the West Bengal Estate Acquisition Act (hereinafter referred to as the Acquisition Act)came into force is not only the owner and occupier of the disputed surface land but also is the owner of the sub-soil rights including the minerals, does not bear a close scrutiny. With the introduction of the Acquisition Act, upon a due publication of a notification under section 4 of the Acquisition Act, ail estates and rights of intermediaries in the estates to which the declaration is made shall vest in the State free from all incumbrances. Clause (1) of Section 5 provides that rights in sub-soil including the right in mines and minerals shall vest on the issue of a notification under section 4 of the Act. It is well-nettled that the Zamindar is presumed to be the owner of the underground lights in the tenancy created by him in the absence of evidence that he ever parted with them (8) Harinarayan Singh v. Sri Ram 37 Indian Appeal 136), (16) Sukhdev Singh v. Maharaja Bahadur of Gidhaur. A.I.R. (1951) S.C. 288. As a result of vesting of the estates' and the rights of the intermediaries the under-ground rights including the right in the mines and minerals also now vest in the State free from all incumbrances. Chapter IV of the Acquisition Act which deals with mines and minerals has been given overriding effect over the other provisions of the said Act. Under Section 28 the intermediaries working the mines still hold as if they are the lessees under the said Act. The terms and conditions of such lease shall be as agreed upon between the intermediaries and the State government. Section 29 deals with the cases where the intermediaries have leased out the mines and minerals to others. Such leases shall be deemed to have been granted by the holders of the said subsisting leases. Therefore on the date of vesting, if the lands are directly worked by the intermediaries or there is a submitting mining lease the provisions of Chapter IV of the Acquisition Act will govern such cases. In all other cases the underground rights including the rights in mines and minerals will vest in the State under Section 5 (i) of the acquisition Act. In all other cases the underground rights including the rights in mines and minerals will vest in the State under Section 5 (i) of the acquisition Act. It is the admitted case of both the parties that on the date of vesting the minerals (if brick-earth is held to be a minor mineral) were not directly worked by the petitioner or there was no subsisting mining lease on the date of vesting. In that event all rights in the mines and minerals in respect of the brick-field have vested in the State under Section 5 (1) of the acquisition Act. 8. REGULATION of mines and development of minerals come under Entry 54 of the Union List and Entry 23 of the state List subject to Entry 54 of the union List. In the case of (2) Baijnath Kadia v. State of Bihar and Ors. (A.I.R. 1970 S. C. 1436) it has been held that it is open to Parliament to declare that it is expedient in the public interest that the regulation of mines and development of minerals should vest in the Central government. Once this declaration is made and the extent of such declaration is laid down, the subject of legislation to the extent so laid down becomes an exclusive subject for legislation by parliament. Any legislation by the state trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. In view of the fact that the Parliament under section 2 of the Act has declared that it is expedient in the public interest that the Union should take under its control the regulations of mines and the development of minerals to the extent provided in the Act, the grant of any mining lease can be now regulated only by the act and not by Section 1 (2a) of the land Reforms Act, 1955. In my view the sub-soil rights including the minerals in the present case of the disputed land vests in the State and the State has the jurisdiction, competence and authority to insist on compliance with the provisions of the Rules for obtaining a lease of such right in minerals. I now take up point No. 4 for my consideration. In the case of (15) State of West Bengal and Ors. v. Jagadamba Prosad Singh (A.I.R. 1969 Cal. I now take up point No. 4 for my consideration. In the case of (15) State of West Bengal and Ors. v. Jagadamba Prosad Singh (A.I.R. 1969 Cal. 281) the Division Bench of this Court considered the question as to whether "ordinary earth for brick-making" can be equated with "ordinary clay". The said decision was based on the Schedule i of the Rules framed by the State government before its amendment on 30.9.1989. Schedule I at that time imposed royalty on "ordinary earth for brick-making". It was held in that ease that the expression "clay" may be included within the expression "earth" but "ordinary earth" cannot be equated 'with "ordinary clay" and as such the state Government had no right to make rules under the Act in respect of "ordinary earth" and had no right to insist am a permit for the use of "ordinary earth for manufacture of bricks, and for payment of royalty therefore. As a result of the said decision, the Schedule was amended so as to substitute the expression "ordinary earth for brick-making" for "brick earth". It is therefore not necessary for the purpose of the present application to decide the question whether "brick-earth" is "ordinary clay" within the meaning of section 3 (e) of the Act in view of the notification by the Central Government that "brick-earth" is a minor mineral. If "brick-earth" as such has been declared by the Notification, and in view of the amendment to the Schedule to the Rules made by the State Government to be a mind mineral within the meaning of section 3 (e) of the Act, the State government is competent to frame Rules far the regulation of grant of mining leases in respect of "brick-earth". It appears that the attention of the Division Bench was not 'drawn to the notification dated 29. 5. 1958 declaring "brick-earth" as a minor mineral. The division Bench, therefore, had to consider, in the absence of a specific enumeration of "brick-earth" within the definition of minor mineral, whether "ordinary earth for brick-making" can be considered to be "ordinary clay" so as to come within the definition of minor mineral. A feeble attempt was made contending that what was included in minor mineral was murram brick-earth' end net "brick-earth" as such. A feeble attempt was made contending that what was included in minor mineral was murram brick-earth' end net "brick-earth" as such. This contention; is hardly tenable as, in my view "murrum" and "brick-earth" are two separate minerals and both, of them have been declared by the Central Government to be minor minerals. The confusion was created because of the absence of a comma, after the word "murrum" which appears in some of the publications. The view I am taking ' is supported by the decision in the case of (3) Brimco Products Bharatpur v. State of Rajasthan (A.I.R. 1972 Rajasthan 145. 9. POINT No. 5 is now deal with. It is contended that "brick-earth" is not a mineral. Parliament under Entry 54 of List 1 of the 7th Schedule can legislate only in respect of such substance which can be called "minerals". Brick-earth not being a mineral, Parliament or its delegate has no competence to declare it to be a "minor mineral". Regulation of mines and development of minerals come under Entry 54 of the Union List and entry 23 of the State List. The expression "mineral" according to section 3 (a)of the Act includes all minerals except mineral oil. This definition however is not of much assistance for the present purpose. There is no general definition of the word "mineral". Lord Watson in the case of (11) Lord Provost and magistrate of Glasgo v. Eane (13 A. C. 657) pointed out that "mines and minerals" are not definite terms; they are susceptible of limitation or expansion, according to the intention with which they are used. The variety of meanings which the use of the word "mineral" admits of has itself been the source of all difficulties in the ascertainment of its scope and ambit in a particular statute in order to determine in each case whether the word is used in a wide or narrow sense, it is necessary to look at the object which -the Legislature has in view. The same view has been taken in the case of (13) Northern Pacific railway Co. v. John A. Soderberg (U. S. Supreme Court 47 Law Edition 524. "the word "mineral" is used in many senses, dependent, upon the context, that the ordinary definitions of the dictionary throws but little light upon its signification in a given case. The same view has been taken in the case of (13) Northern Pacific railway Co. v. John A. Soderberg (U. S. Supreme Court 47 Law Edition 524. "the word "mineral" is used in many senses, dependent, upon the context, that the ordinary definitions of the dictionary throws but little light upon its signification in a given case. "The word "mineral" according to ordinary dictionary meaning means "any substance which is obtained by mining". It has been held to include every substance which can be got from underneath the surface of the earth for the purpose of profit unless there is something in the context or in the nature of the transaction to induce the court to give a more limited meaning, (4) Earl Jersey v. Neath Poor Guardian (1889) 22 Q. B1d. 1555. (9) Hext v. GUI (L. R. 7 Ch. 699. Lord Macnaughten in Glasgo v. Earie (vide supra) pointed out that the word "mineral" has a wider meaning within than word "mine". In its widest signification, it probably means every inorganic substance forming part of the canst of the earth other than the layer of soil which sustains vegetable life. The word "mineral", when used in an Act of parliament must be understood in its widest signification, unless there be something in the context or in the nature of the case to control its meaning. In my view there is nothing in the context of the Act which suggests any limited on restricted meaning to be given to the word "mineral". On the other hand the word as used under the Act admits of a wider connotation. A mineral under the Act is a substance which can be obtained only by a mining operation as defined in Clause 3 (d) of the Act. "mining operation" means any operation undertaken for the purpose of wining any; mineral. When we are construing the word "mineral" appearing in Entry 54 of the Union List for the purpose of determining the legislative competence of the Parliament to enact a law for the regulation of mines and development of minerals, it is a cardinal rule of construction that none of the items, in the list is to be read in a narrow or restrict ed sense but should be given a large and liberal interpretation (17) United provinces v. Mt. Atiqua Begum A. I. R. (1941) F. C, 16, (14) Navin Ch. Atiqua Begum A. I. R. (1941) F. C, 16, (14) Navin Ch. Mafatlal, v. C. I. T. Bombay (A. I. R. 1955 S. C. 58) 10. THE question may be considered from a slightly different angle. Before the enactment of the Act, the Mines and minerals (Regulations and Development) Act, 1948, was enacted under entry 36 in List I of the 7th Schedule of the Government of India Act, 1935, which is in pari material with Entry 54 of List 1 of the 7th Schedule of the constitution under which the Act has been made. Section 3 of the said Act of 1948 defines mines and minerals Minerals under Section 3 (c) of the said Act included natural gas and petroleum. Pursuant to the powers given by the said Act, the Mineral Concession Rules, 1949, were framed by the Central government. These Rules for the first time define minor minerals and after amendments made from time to time, the term means "building stone, boulder, shingle, gravel, chalcedony, pebbles (used for ball mill purposes only) lime ahell, kankar and limestone used for lime burning, murrum, brick earth (Fuller's. earch), Bentontte, ordinary clay, ordinary sand (used for non-industrial purposes), when used for building material". It is therefore evident that from the year 1949 onwards, building stone, gravel, ordinary clay, ordinary sand and brick-earth were included in "minor mineral'' under the mines and Minerals (Regulations and development) Act, 1948 and the Rules framed thereunder. The Act came into force from December 28, 1957. It is necessary to bear in mind that the earlier Act of 1948 has not been repeated. The Act has made amendment in the act of 1948 so as to make the later relate to oil field only. All references to mineral other than oil were removed, with the result that the Act of 1943 exclusively dealt with the oil and gas. The Act made provisions for mineral which under Section 3 (a) of the Act include all minerals except mineral oil. All references to mineral other than oil were removed, with the result that the Act of 1943 exclusively dealt with the oil and gas. The Act made provisions for mineral which under Section 3 (a) of the Act include all minerals except mineral oil. Section 29 of the Act provided that all rules made under the Act of 1948 shall, in so far as they relate to matter for which provision is made in the Act and are not inconsistent therewith, be deemed to have been made under the Act, as if the Act had been in force on the date on which such rules were made and shall continue in force until and unless they are superseded by any rule made under the Act. By virtue of Sec. 29 of the act: the earlier rules which included brick-earth in "minor mineral" were continued until the notification has been made under Section 3 (e) of the Ant, The notification made under the Act merely adopts what was already declared to be "minor mineral" under the Mineral concession Rules, 1949. When Parliament was using the words "mineral and miner mineral" in the Act, the said expressions had acquired a particular signification. In the legislative parlance, it cannot be argued therefore that at the time when the Constitution was made in 1950, brick-earth was not considered to be a mineral in the legislative field. The constitution makers should be taken to have been aware of that legal concept, when they mention "mineral" in the list in the 7th schedule It is now settled rule of construction that when the Legislature uses a word which has been previously employed and construed in the preceding legislation, it is well aware of its earlier meaning and such a word or words must be deemed to have been used in the same meaning and sense in a subsequent statute. Brick-EARTH has not been defined in the notification. The ordinary dictionary meaning of "brick-earth" is clay, suitable for making bricks. "brick-earth" is obtained by removing such earth suitable for making bricks by digging or any other process which can be called "a mining operation" within the meaning of the Act. In the case of earl of Jersey v. Neath Poor Guardtan (vide supra) it has been held that a reservation of mines and minerals included brick-earth and clay. In the case of (10) Laddu Mal and ors. In the case of earl of Jersey v. Neath Poor Guardtan (vide supra) it has been held that a reservation of mines and minerals included brick-earth and clay. In the case of (10) Laddu Mal and ors. v. State of bihar (A.I.R. 1965 Pat. 491) it has been held that brick-earth is a mineral and its inclusion in the definition of "minor mineral " is not ultra vires the Constitution. The same view has been taken in the case of (1) Amar Singh Modi Lal v. State of Haryana I. L. R. 1971 (ii)Pun-Haryana 314. For the aforesaid reasons and the authorities referred to I am of the view that "brick-earth" is a mineral and under Section 3 (a) of the act the Central Government has the competence and jurisdiction to declare "brick-earth" as a minor mineral. 11. I now deal with the last point which raises the question as to whether the silt out of which the bricks are manufactured is either "brick-earth" or "ordinary clay" so as to come within the definition of minor mineral under Section 3 (e) of the Act. It is the case of the petitioner that it does not excavate any earth from his lands but simply uses the silt which is accumulated on the lands by river water bring allowed to flood the brick fields in the monsoon season, through an opening in the embankment protecting the field from the river. It is stated that the river water while receding allows the silt contents thereof to settle on the said brick field and layer after layer of silt piles up to a height of several feet. After the monsoon is over and the water recedes, layers of accumulated silt that rest on the hard soil of the brick field are removed and stacked. Such silt is used for making bricks after it is mixed up with propertionate quantities of sand, water and other appropriate materials. In the affidavit field on behalf of the respondents, this is not denied. All that is stated is that the using of earth mixed with silt amounts to clay and "ordinary clay" being minor mineral, the Rules of the State Government are attracted to such cases. In the affidavit field on behalf of the respondents, this is not denied. All that is stated is that the using of earth mixed with silt amounts to clay and "ordinary clay" being minor mineral, the Rules of the State Government are attracted to such cases. It appears from these affidavits that in the case of silt by which brick is manufactured after mixing it with sand, water and other materials, there is no digging of the earth as such. 12. "SILT" according to its dictionary meaning means fine sand, day or other soil, carried by moving or running water and deposited as a sediment on the bottom or beach. The expression "earth" is of vider connotation. It means the material of which the surface of the ground is composed, soil, mould, dust, clay. The express on "clay" according to its dictionary meaning means stiff viscous earth, consisting mainly of aluminum silicate and derived mostly from the decomposition of felspathic rocks. It is found in beds or other deposits at various depth and forms with water a tenacious paste which may be mounded into any shape and hardens when dried it is used loosely for earth, moist earth. "SILT", therefore according to its dictionary meaning is "clay" which is included in "earth" in all its forms. In the unreported case of Jagadamba Singh and ors. v. State of West Bengal (C. R. No 368 (w) of 1962. D. Basu, J. held that unless earth is removed from the subsoil by any process, it cannot be called a mining operation and the removal of "SILT" obtained from river water by accumulating that water on the surface of the land by artificial devices cannot be held to be "ordinary clay" within the purview of the definition of Section 3 (e)of the Act. The Division Bench in that case (vide supra) on appeal decided only one point viz. "ordinary earth for brick making" is not "ordinary clay" and hence the State Government has no right to insist upon taking out the permits for the use of "ordinary earth" for manufacture of bricks. The Division Bench was unable to agree with the view of D. Basu, J. that "earth" and "clay" are interchangeable expressions or that "ordinary earth" is a minor mineral or that digging up of "ordinary earth" is necessarily a mining operation. The Division Bench was unable to agree with the view of D. Basu, J. that "earth" and "clay" are interchangeable expressions or that "ordinary earth" is a minor mineral or that digging up of "ordinary earth" is necessarily a mining operation. Although "clay" may include "SILT", the question still arises whether "SILT" can be called "ordinary clay" This question as to whether "SILT" is "ordinary clay" has not been decided the Division Bench. In my view, "SILT" obtained from river water by accumulating the water on the surface of the land in the manner it has been done cannot be considered to be "ordinary clay" within the purview of the definition of Section 3 (e) of the Act. "SILT" being a kind of clay may come within the wider expression "earth". If such "SILT" is suitable for brick making, it can be considered to be ''brick-earth". Thus, although "SILT" may not be "ordinary clay" but if such "SILT" is suitable for brick making and is used for such purpose, it comes within the expression "brick-earth" which by the notification of the Central Government is now declared to be a "minor mineral''. As none of the contentions raised on behalf of the petitioner succeeds, this rule is discharged. Interim order, if any, stands vacated. There will be no order as to costs. Rule discharged.