JUDGMENT 1. - These 29 special appeals, under Section 18 of the Rajasthan High Court Ordinance, by the State of Raj. are directed against the judgment of the learned Single Judge dated November 25, 1969. They arise out of 29 writ petitions Nos. 677 of 1969, 203 of 1969, 268 of 1969, 430 of 1969, 731 of 1969, 951 of 1969, 155 of 1969, 410 of 1969, 494 of 1969, 736 of 1969, 476 of 1969, 1364 of 1969, 118 of 1968, 970 of 1969, 1162 of 1969, 1014 of 1968, 678 of 1969, 123 of 1967, 1168 of 1969, 943 of 1969, 89 of 1968, 1056 of 1969, 148 of 1969, 975 of 1969, 525 of 1969, 966 of 1969, 322 of 1969, 969 of 1969 and 284 of 1969, which were disposed off by the learned Single Judge by a common judgment of November 25, 1969. The learned Single judge allowed the writ petitions Nos., 118 of 1967, 155 of 1969, 203 of 1969, 410 of 1969, 430 of 1969, 322 of 1969, 268 of 1969, 476 of 1969, 494 of 1969, 525 of 1969, 678 of 1969, 731 of 1969, 736 of 1969, 969 of 1969, 970 of 1969, 975 of 1969, 1056 of 1969, 1162 of 1969, 1168 of 1969 and 1014 of 1969. These writ petitions related to cases where the petitioners had excavated or won the minerals without obtaining any lease, royalty-cum-lease or short term permit in an unauthorized manner. The learned Single Judge allowed these petitions, inter alia, on the ground that the royalty cannot be charged from the persons who were trespassers or unauthorized excavators of the minerals under the provisions of the Minor Mineral Concession Rules. The special appeals Nos. 224 of 1970, 218 of 1970, 13 of 1970, 219 of 1970, 215 of 1970, 238 of 1970, 214 of 1970, 222 of 1970, 220 of 1970, 236 of 1970, 228 of 1970, 216 of 1970, 221 of 1970, 239 of 1970, 225 of 1970, 235 of 1970, 233 of 1970, 226 of 1970, 230 of 1970 and 227 of 1970 respectively relate to these 20 writ petitions. 2. Writ Petitions Nos. 2. Writ Petitions Nos. 123 of 1969, 89 of 1968, 285 of 1969, 943 of 1969, 148 of 1969, 677 of 1959, 951 of 1969, 964 of 1969 and 1364 of 1969, related to those contractors, who had obtained short term permits for particular category of minerals for the specified quantity, but had won the minerals other than those specified in the short term payments. The learned Single Judge therefore, allowed these writ petitions also on the ground that the minerals which were not mentioned in the permit and were used by petitioners, were not chargeable to royalty as the winning of such minerals would amount to uunauthorised excavation of the minerals. The State has therefore, filed these 29 special appeals challenging the judgment of the learned Single judge in respect of the above writs alleging that despite the unauthorised winning of the minerals, the royalty would be chargeable on such minerals from the respondents. 3. In order to appreciate the controversy involved in these appeals, it will be proper to give some material facts which are relevant for the disposal of these appeals the respondents in these casts, were the contractors, who had undertaken the construction of the defence roads and in the course of Construction of the roads they excavated and used certain mining mineral without getting lease or royalty-cum-lease or short term permits. As a matter of fact, they excavated or won the minerals other than these specified in the short term permits. They did not pay any royalty to the Mining Department for the use of such minerals. The Mining Department issued notice of demand for the recovery of the royalty for the minerals unauthrizedly excavated and used by the respondents. The respondents did not comply with the notices by making payment of the amount mentioned in the notices. On the other hand, they challenged the demand notices under Article 226 of the Constitution of India on various grounds. In these petitions, the stand to the respondent was that the minerals which they used unauthorizedly were not at all chargeable to royalty, as the royalty is payable to the Government in respect of are or minerals excavated from any Government land which is leased out under the Rules. In these petitions, the stand to the respondent was that the minerals which they used unauthorizedly were not at all chargeable to royalty, as the royalty is payable to the Government in respect of are or minerals excavated from any Government land which is leased out under the Rules. According to the respondents, they were neither the lessees nor short term permit holders and therefore the royalty could not be recovered for the unauthorized excavation of the minerals by them, as there was no provision of law empowering the State Government to recover the royalty in respect of the minerals unauthorizedly excavated or won by the respondents. 4. The State Government opposed the Writ petitions and tried to justify the demands. In its return, the State alleged that the respondents had entered into contracts with the State of Rajasthan (the Public Works Department) Clause 30 (a) of that agreement provided that the respondents- contractors will make payment of the quarry fees, octroi, royalty etc. The State, therefore, on the basis of clause 30 (a) of the agreement, contended that the royalty could be recovered even for the unathorized excavated minerals used by the contractors by Virtue of the said clause of the agreement entered into between them and the State. It was further pleaded by the State that, at any rate, under section 256 of the Rajasthan Land Revenue Act, the State was entitled to make recovery in respect of the minor minerals unauthhorizedly excavated and used by the respondents. 5. The learned' Single Judge allowed the writ petitions of the respondents who had excavated the minerals without obtaining any permit or lease on the ground that the royalty could not be recovered from them and any provisions of the Rajasthan Minor Mineral Concession Rules and at best the respondents could be prosecuted for unauthorized excavation and user of the minerals under rule 47 of the Rules. He, therefore wholly allowed such writ petitions of each of the respondents who had unauthorizedly excavated and used the minerals without obtaining any lease or permit from the State Government. He, therefore wholly allowed such writ petitions of each of the respondents who had unauthorizedly excavated and used the minerals without obtaining any lease or permit from the State Government. As regards the cases of the respondents, who had obtained the permits of a particular category of minerals but had excavated or used the minerals other than those specified in the permits, the learned Single, Judge partly allowed the writ petitions holding that so far as the, minerals which were specified in the permits are concerned, the respondents were under an obligation to pay the royalty. But the royalty in respect of the minerals, which were excavated and used, and which were not specified in the permit could not be realised as, such an excavation tantamounts to unauthorized one. It is in these circumstances, that these 29 special appeals have come to be filed by the State. 6. The learned Government Advocate has assailed the judgment of the learned Single judge on various grounds Firstly. the recoveries against the respondents could be made by virtue of clause 30 (a) of the agreement entered into between the State and the contractors, as under that clause, the contractors had taken the responsibility of paying the royalty recoveries against the contractors, therefore. could be made on the basis of the agreement under clause (h) of section 256 of the Land Revenue Act; secondly, the recoveries could be made against the contractors (respondents in these appeals) either under clause (c) (ii) or (d) of section 256 of the Act for unauthorisedly extracting minerals from the mines; thirdly, the respondents being unauthorised excavators of the minerals, are disentitled to get an) relief under Article 226 of the Constitution by their conduct as they are trespassers and unlawful excavators of the mineral; fourthly by virtue of amendment in the Mines and Minerals (Regulation and Developments) Act, 1972, recoveries could be made against the respondents in regard to the unauthorised excavation of the minerals under the newly inserted sub-section (5), of section 21; fifthly, the respondents had alternative remedy by way of suit under sub section (3) of section 257B of the Act as they could file suits under this subsection; & lastly, recoveries could be made from the respondents under rules 55 and 64 and 65 of the Rajasthan Minor Mineral Concession Rules (hereinafter to be referred to as "the RMMC Rules"). On these grounds, the learned Government Advocate urged that the learned Single Judge should have dismissed the writ petitions filed by the respondents. 7. On the other hand, it has been contended on behalf of the respondents that clause 30 (a) of the agreement entered into between the State and the respondents was of no avail for effecting recoveries on the basis of that clause. The plea that the respondents were disentitled to issue of writs on account of their conduct on the ground of their being unauthorised excavators, cannot be availed of as the same was not taken up in the writ petitions and it was to late in the day to now raise this ground far the first time in there appeals; that the duet are neither recoverable under section 256 (c) (ii) nor under section 256(e) or under any of the clauses of section 256. The appellants cannot effect recoveries by virtue of the newly inserted sub-section (5) of Section 1 of the Mines and minerals (Regulation and Development) Act No. 56 of 1972 (hereinafter called "the Act No. 56 of 1972"), as this sub-section neither provides any procedure or machinery for the recovery Rules 55, 64 and 65 of the RMMC Rules cannot be availed of by the respondents. Rule 55 cannot be availed by the respondents as recovery under this rule can be made of dues in respect of dead-rent, surface-rent, royalty-rent & royalty contract amounts, which is not the cast here. Likewise, rule 64 of the RMMC Rules cannot be pressed into service as that rule, which was enacted on January 13, 1972 was repugnant to the Act of 1957, as there was no provision for making recoveries against the trespassers or unauthorised excavators. The plea of alternative remedy is also futile as the same has been raised for the first time in these special appeals, without raising the same is the writ proceedings. It was, therefore, submitted on behalf of the respondents that all the appeals of the State deserve to be dismissed. 8. Before taking the contentions relating to merits, we deem it proper to first take the preliminary pleas on the ground of existence of alternative remedy and the disentitlement of the respondents (writ petitioners) on the ground of their conduct. 9. 8. Before taking the contentions relating to merits, we deem it proper to first take the preliminary pleas on the ground of existence of alternative remedy and the disentitlement of the respondents (writ petitioners) on the ground of their conduct. 9. As regards the plea based on alternative remedy is concerted, it may be stated at once that that plea was not taken before the learned Single Judge in the return filed by the State. This objection regarding the availability of alternative remedy should have been raised before the learned Single Judge and it having not been raised, it cannot be alloyed to be rained for the first time in these special appeals as laid down in L. Hirday Narain v. Income-tax Officer, Bareilly (1) : AIR 1971 SC 33 . Moreover, the writ petitions were not only registered, but were argued on merits without raising any objection as to alternative remedy, and therefore, it is too late in the day for the State to contend that the writ petitions should have been dismissed on the ground of availability of alternative remedy. We are fortified in this view of ours by a decision of the Supreme Court in L. Hirday Narain's case (1) (supra). 10. Coming to the second preliminary objection based on the ground of conduct, it may be point out that such plea was not raised in the return filed by the State before the learned Single judge. There is no doubt that the conduct of the writ petitioners is a relevant consideration for the exercise of discretion under Article 226 of the Constitution, but such an objection having not been taken before the learned Single Judge, it cannot be permitted to be raised in the special appeal. Had the objection been raised before the learned Single judge, he could have been persuaded to decline to go into the merge of the case. The question of conduct is not a p ire question of law, but is rather a mixed question of law and fact, and plea in this behalf, having not been taken, it would not be proper to now allow such a new plea to be raised so as to defeat the petitioners writ petitions on this ground. The question of conduct is not a p ire question of law, but is rather a mixed question of law and fact, and plea in this behalf, having not been taken, it would not be proper to now allow such a new plea to be raised so as to defeat the petitioners writ petitions on this ground. Had the State raised the plea that the respondents were disentitled on account of their conduct, the learned Single Judge could have gone into such a plea and would have, in his discretion, allowed or rejected the plea. In the absence of such plea having been taken before the learned Single Judge, we are not inclined to permit the State to now raise the new plea which was never raised in the return filed before the learned Single Judge. We, therefore, rule out the preliminary objections based on the grounds of alternative remedy and conduct of the respondents. 11. We now proceed to examine the case on merits. the first ground of the appellant State is that the recovery could be effected by virtue of clause 30 (a) of the agreement entered into between the State and each of the respondents. The learned Government Advocate urged that clause 30 (a) of the agreement entitled the State to recover the royalty from the response its. He has submitted that the respondents having agreed to pay the royalty under clause 30 (a), the same could be recovered under section 236 of the Rajasthan Land Revenue Act. We have looked into clause 30 (a) of the agreement. From a bare reading of clause 30 (a) of the agreement, it would be plain that the clause does not confer any right upon the State to realise the royalty from the respondents who have unauthorisedly excavated the minerals from the mines. Clause 30(a) simply says that the petitioners who had entered into contracts with the Public Works Department shall be responsible to pay the dues, namely, octroi, royalty, taxes ceases etc. and the same shall not be payable by the Public Works Department. This clause occurred in the agreement entered into between the respondents (petitioners) and the State in respect of the construction of the defence roads, and could not be construed to entitle the State to make recoveries under the RMMC Rules. and the same shall not be payable by the Public Works Department. This clause occurred in the agreement entered into between the respondents (petitioners) and the State in respect of the construction of the defence roads, and could not be construed to entitle the State to make recoveries under the RMMC Rules. We do not find it, clause 30(a), any stipulation on the part of the respondents to pay royalty to the Mining Department. Indisputably, there were no completed valid contracts between the Mining Department and the respondent contractors (writ petitioners) to pay royalty to it. Under clause 30(a) of the agreement, there is a stipulation to the effect that the liability to pay octroi, tax, cess and royalty will be of the contractors and the Public Works Department will, in no way, be responsible to make payment of such dues. Undoubtedly, in clause 30(a) of the agreement, there is nothing to draw an inference that the royalty could be recovered by the Mining Department on its basis. We, therefore, repel the contention of the learned Government Advocate based on clause 30(a) of the agreement. 12. That brings us to the question as to whether the recovery of royalty could be effected against the respondents under the newly inserted sub-section (5) of section 21 of the Mines and Mineral (Regulation and Development) Act. The learned Government Advocate urged that section 21(5), which was inserted by Act No. 56 of 1972 authorised the Government to recover the royalty on the minerals unauthorisedly excavated by the respondents (petitioner). He further contended that rules 55, 64 and 65 of the RMMC Rules empower the State to realise the royalty from the respondents in regard to the minerals unauthorised excavated by them, as arrears of land revenue. In order to examine the contention of the learned Government Advocate, it will be useful here to read section 21 (5) of the 1957 Act, as amended by Act No. 56 of 1972, as also rules 55, 64 and 65 of the RMMC Rules. In order to examine the contention of the learned Government Advocate, it will be useful here to read section 21 (5) of the 1957 Act, as amended by Act No. 56 of 1972, as also rules 55, 64 and 65 of the RMMC Rules. "21 (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of the price thereof, and may also recover from such person rent, royalty or tax, is the case may be, for the period during which the land was occupied by such person without any lawful authority." "55 Dues may be recovered as arrears of land revenue - Notwithstanding anything in these rules, the Government may recover any dues in respect of dead-rent, surface rent, royalty rent and royalty collection contract amount (value of the minerals) as arrears of land revenue under the law in force relating to such recovery." "64 (1) Notwithstanding anything contained in these rules, whosoever excavates, removes, or use mineral or on whose behalf such excavation or removal or use is made without obtaining Mining Lease, Rent-cum-royalty lease or Short Term Permit granted tinder these rules shall be liable to the value of the mineral excavated or removed or used the value of the mineral shall be deemed to be 10 times the highest amount of royalty payable as per Schedule I of these rules." "65 The Assessing authority for the performance of these rules, for reasons to be recorded, may summon any of the party using or dealing with, the minor mineral in the State, may demand necessary information and resources from where the mineral has been procured, and the assessing authority can also depute any official by an order in writing general or special to collect such information and thereafter assess the royalty recoverable or the value recoverable, as the case may be." The newly inserted sub-section (5) of section 21 of the Mines and Mineral (Regulation & Development, (Amendment) Act of 1972, of CEO use, authorised the State Government to make recoveries in respect of minerals excavated without authority of law by unauthorised excavators. Therefore, the question that arises is that under sub-section (5) of section 21, which has been enacted by act No. 56 of 1972, recovery could be made for the minerals excavated prior to the coming into force of this sub-section. From a bare reading of section 21 (5), it appears that it is a remedial provision authorising the Sate to effect recovery in regard to the minerals unauthorisedly excavated. The object behind the provision is to provide remedy for recovery against those who had unauthorisedly excavated the minerals. The rights of minerals, mines and quarries etc. vest in the State Government and the State Government shall have all powers necessary for the enjoyment of such a right, as provided in section of the Land Revenue Act. It is beyond dispute that no one can excavate any mineral without permission "or without any payment to the State Government" and any unauthorised excavation would entail liability, both civil and criminal. Under rule 47 of the RMMC Rules, the unauthorised excavator can be prosecuted for unauthorised excavation of minerals. Under sub-section (7) of section 89 of the Land Revenue Act, any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in the State can be made liable on the order in writing by the Collector to pay a penalty not exceeding a sum calculated at the rate of fifty rupees per ton, or a fraction thereof, of the minerals so extracted or removed Sub-section (7) of section 89 of the Act creates beyond doubt, the liability on the unauthorised excavators to pay for the minerals unauthorisedly excavated. There was no provision for making recovery either tender the Mines and Minerals (Regulation and Development) Act of 1957 or under the Rajasthan Minor Mineral Concession Rules. It was to remedy this lacuna that sub section (5) of section 21 of the Act No. 56 of 1972, was inserted. Undoubtedly, recovery has, therefore, now been made possible from unauthorised excavators under section 21 (5) Sub-section (5) of section 21, even it it is assumed not to be retrospective, can be availed for the recovery of the past dues from the reading of the plain language of that section. Undoubtedly, recovery has, therefore, now been made possible from unauthorised excavators under section 21 (5) Sub-section (5) of section 21, even it it is assumed not to be retrospective, can be availed for the recovery of the past dues from the reading of the plain language of that section. It was contended on behalf of the respondents that from the reading of sub-section (5) of section 21, it will appear that section applies to the dues which has arisen after the coming into force of suction 21 (5) as inserted by Act No. 56 of 1972 and not to the past liability. In this connection, much stress has been laid by the counsel for the respondents on the expressions "whenever any person raises" occurring in subsection (5) of Section 1 and on that basis, it was emphasised that sub-section (5) is prospective and will not govern the past liability. We do not agree with this contention. There is nothing in the expression "whenever any person raise." or in the context in which it occurs to suggest that it was intended to restrict the operation of the sub-Sec. to cases of persons raising minerals after the commencement of this Act. In our opinion, sub-section (5) of section 21, being a remedial provision, will govern the past liabilities incurred on account of raising of the minerals in the past. The reason is that when the minerals were raised, the liability wit incurred and by virtue of sub-section (5) of section 21, the sale-price of the mineral so raised or disposed of, can be recovered for the quantities of minerals so raised or used or disposed of. We are fortified in our view be a Supreme Court decision in J.N. Sharm v. H.M. Vijaikuoerba (2) : AIR 1967 SC 1074 . There is nothing in the expression "whenever a person raises" or in the context in which it occurs, to suggest that it was intended to cases of persons raising minerals after the coming into operation of sub-section (5) of section 21 of the Act of 1957. In terms sub-section (5) of section 21 of the Mines & Minerals (Regulation & Development) Act, imposes liability upon the person who has raised the minerals or disposed it of for paying the sale price of the minerals so raised. In terms sub-section (5) of section 21 of the Mines & Minerals (Regulation & Development) Act, imposes liability upon the person who has raised the minerals or disposed it of for paying the sale price of the minerals so raised. There is nothing in the expression "whenever a person raises" or in the context in which it occurs to suggest that it was intended thereby to restrict the operations of the sub-section to cases of persons who have raised the minerals after the insertion of subsection (5) of section 21 of the Mines & Minerals (Regulation and Development) Act. Assuming for a moment that section 21 (5) is not retrospective, nevertheless, it can be availed for the recovery of past dues which has accrued under section 89(7) of the Lard Revenue Act, It reads as under:- "Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in and has not been assigned by the state Government, shall without prejudice to any other action that may be taken against him, on the order in writing of the Collector to pay a penalty not exceeding a sum calculated at the rate of fifty rupees per ton, or a fraction thereof, of the minerals so extracted or removed. Provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose." From the perusal of this sub-section, it is clear that the State Government may call upon the unauthorised excavator to pay a penalty not exceeding a sum calculated at the rate of fifty rupees per ton on the order in writing of the Collector. This sub-section therefore clearly creates liability against the unauthorised excavators or removers of the minerals. The liability, therefore, is categorically created against the unauthorised excavators under this sub-sec. Section 25 (2) of the Mines & Mineral (Regulation and Development) (Amendment) Act. 1972, empowers the State Government to recover any sum due to the Government under the Act, if any, therein as an arrear of land revenue. Indisputedly, the liability for payment has accrued under the common law as well as under section 89 of the Rajasthan Land Revenue Act. This sub-section is a remedial provision. Section 21 (5) comes under the definition of remedial Act. Indisputedly, the liability for payment has accrued under the common law as well as under section 89 of the Rajasthan Land Revenue Act. This sub-section is a remedial provision. Section 21 (5) comes under the definition of remedial Act. Remedial Act, as defined by Blackstone, is as one made to "supply such defects and abridge such superfluities in the common law as arise, either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (and even learned) judges. or from any other cause whatever". The definition given by Blackstone is, of course, too narrow as observed by Craies in his treaties on "Statute Law" vide page 60 of "Craise on Statute Law", 1971 edition. The object of Remedial Acts is to fill up the lacuna or to overcome the omissions with a view to provide remedy under the Act which was not available under the Act although the liability was there. Viewed in this light, all that sub-section (5) of section 21 provides is that recovery can be made of the price of the minerals unauthorisedly excavated, or the minerals, if disposed of. This sub-section will equally apply to the antecedent dues as there is no prohibition or intention to the contrary in sub section (5). The legislative intendement behind the insertion of sub-section (5) appears to provide remedy for recovering the amount in respect of unauthorisedly excavated minerals, which was absent prior to the Amendment Act No. 56 of 1972 and Rules 64 and 65 of the RMMC Rules. 13. The learned Government Advocate urged that besides sub section (5) of Section 21, rises 55, 64 & 65 of the RMMC Rules, also support the stand of the State Rule 55 of the RMMC Rules lays down that notwithstanding anything contained in the rules, the Government may recover any duns in respect of dead-rent surface rent, royalty, rent-royalty, rent and royalty collection contract amount (value of the minerals) as arrears of land revenue order the law in force relating to such recovery. This rule is, obviously, of no avail to the State as it relates to the recovery of dues in respect of dead rent, surface-rent, royalty, rent and royalty collection contract. This rule is, obviously, of no avail to the State as it relates to the recovery of dues in respect of dead rent, surface-rent, royalty, rent and royalty collection contract. Rule 64, of course makes a provision, to the effect that whoever excavates, removes or uses mineral or on whose behalf such excavation or removal or use is made without obtaining Mining Lease, Rent-cum-Royalty lease or Short Term Permit granted under the rules, shall be liable to the value of the mineral excavated or removed or used. The value of the mineral shall be deemed to be 10 times the highest amount of royalty payable as per Schedule 1 of these Rules 65 the RMMC Rules provides for the procedure for recovery of dues as envisaged in rule 64 the RMMC Rules. 14. It was, however, contended on behalf of the respondents that rules 64 and 65 are invalid as they were made prior to the coming into force of the Amendment Act No. 56 of 1972. The learned Government Advocate, however, has contested the stand taken by the respondents. He has drawn our attention to Single Bench decision of this court in Nemi Chand v. State of Rajasthan (3) : 1977 RLW 421 , and contended that the rules shall be deemed to have been framed under the Act of 1957, as amended by Act No. 56 of 1972. He placed reliance on Bihar Mines Ltd v. Union of India and others (4) AIR 1967 SC 887 . In that case, rules were framed under the Act of 1948. The validity of the Rules was challenged on the ground that the Rules were not framed under Act of 1957. Bachawat and Hidayutualla JJ. held that in view of section 29 of the Mines & Minerals (Regulation & Development) Act, 1957, the rules must be deemed to have been made under the 1957 Act as if that Act was in force when the Rules were made. It was further laid down that the validity of the Rules trust now be judged with reference to the 1957 Act. As the Rules are in conformity with the 1957 Act, they must be regarded as validly made order it. It was further laid down that the validity of the Rules trust now be judged with reference to the 1957 Act. As the Rules are in conformity with the 1957 Act, they must be regarded as validly made order it. Although rule 64 was made after the Amendment Act No. 56 of 1972, it will be deemed to be validly made as it is in conformity with the Act of 1957 as amended by Act No. 56 of 1972 Reference in this connection be made to J.N. Sharma's case (supra) (2). The contention on behalf of the respondents that rules 64 and 65 are invalid, therefore, cannot be accepted. Rule 65 of the RMMC Rules makes provision for machinery to make recoveries under the Rules. It states that the assessing authority may, for the reasons to be recorded in writing, summon any of the party using or dealing with, the minor mineral in the State, may demand necessary information and resources from where the mineral has been procured. As stated earlier, rule 64 provides that whoever excavates, removes or uses mineral or on whose behalf such excavation or removal or use is made without obtaining Mining Lease, Rent-turn-Royalty lease or Short Term Permit, shall be liable to the value of minerals excavated or removed or used. From the combined reading of rules 64 and 65 read with section 21 (6), it is evident that the recovery can be effected under these provisions from the unauthorised excavators even as arrears of and revenue. It may, however, be made clear that the procedure enacted in R. 65 of the RMMC Rules will have to be adopted before issuing of a writ of demand from the prison who has excavated or won, removed the minerals or used the same. 15. The reasoning of the learned Single judge that recovery can be effected in summary manner only in cases of leases, royalty-cum-lease or short term permit was in reference to provisions of the RMMC Rules, then prevailing, but in view of the subsequent amendment of the Mines and Minerals (Regulation and Development Act, that reasoning will no more be available to the respondents, if the recovery proceedings are taken as indicated above. 16. There is, however, formidable difficulty in the way of the State to make recoveries under the impugned notices. 16. There is, however, formidable difficulty in the way of the State to make recoveries under the impugned notices. The notices were issued when section 21(5) and rule 64 and 65 of the RMMC Rules were not on the statute book The notices of demand against the respondents sere raised on behalf of the Mining Department, and not by the Collector, as envisaged under section 89. In the absence of provisions of section 21(5) and rules 64 and 65, the Recovery Officer had no jurisdiction to issue writs of demand for recovery of the amount in respect of the unauthorised excavated minerals Moreover, writs of demand were issued without affording opportunity to the respondents for ascertaining the quantities and categories of minerals unauthorisedly excavated by the respondents. The learned Government Advocate tried to canvass that in many of the writ petitions, the quantities of the minerals are admitted. The quantities of minerals have not been ascertained after giving opportunity of being heard to the respondents. Admittedly, the notices were issued without affording any opportunity to the respondents of being heard. It is well settled principle of natural justice that before the writs of demand were issued, the quantities of the unauthorised excavated minerals should have been ascertained after giving reasonable notice of being heard to the respondents. Adequate opportunity of hearing is to be given to a party before the decision as to the quantities of minerals excavated is taken against the respondents. It was obligatory on the recovery officer to inform the party as to what action was proposed to be taken which would affect his rights. Affected parties must have been told why the proposed action was being taken and on what materials, the action was contemplated. Thereafter, as a matter of right the party must be heard. At any rate, the ascertainment of the quantities of unauthorised minerals is sine qua non for issuance of writ for recovery against the respondents. It is not disputed that no such opportunity was given to the respondents The notices of recover, therefore, are invalid. Thereafter, as a matter of right the party must be heard. At any rate, the ascertainment of the quantities of unauthorised minerals is sine qua non for issuance of writ for recovery against the respondents. It is not disputed that no such opportunity was given to the respondents The notices of recover, therefore, are invalid. Taking into account, the stringent nature of the provisions of section 21(5) of the Mines & Minerals Regulation and Development) Act and so also rules 64 & 65 of the RMMC Rules, it is obligators' on the State to ascertain and to establish its ascertained claim before a writ of demand could be issued The dues are now undoubtedly recoverable under the Mints & Minerals (Regulation & Development) Act read with rule 64 and rule 65 of the RMMC Rules. But as the notices were issued prior to they coming into operation of the above provisions, the notices cannot be held to be valid by virtue of this subsequent amendment in the Act of 1957 & in the RMMC Rules The reason is obvious. The notices wire invalid from its very inception and therefore, void. What is void, cannot be infused attribute of validity by subsequent amendments unless the amended provisions retrospectively validate the notice, therefore, notices will be deemed to be invalid. Indisputably, the notices in the present cases were invalid from the very inception and they could not be taken to be valid ones on account of the subsequent amendment in section 21 of the Act of 1957 and so also in rules 64 and 65 of the RMMC Rules. For the reasons given earlier, such notices cannot be allowed to stand although on different seasons mentioned above. 17. In view of the foregoing discussions we are constrained to dismiss these special appeals. If the State so desires it may take appropriate action on the lines indicated, after observing the procedure as indicated above. In the facts and circumstances of the case, we make the cost easy.Special appeals dismissed. *******