Judgment : (V.M. Kanade, J.) 1. All these Petitions can be disposed of by a common judgment since the Petitioners in these Petitions are challenging the vires of Notification dated 13/08/2009, amended Rule 64D of the Mineral Concession Rules, 1960 and are challenging the instruction dated 10/12/2009 which had been issued by Respondents on the ground that it is contrary to the proviso to section 9(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “MMDR Act”). 2. Petitioners in these Petitions have been granted mining lease of various plots of lands mentioned in respective Petitions and pursuant to the said lease which has been granted, they have been carrying on mining activities and are selling ore of various grades. The royalty payable by Petitioners in respect of the said mining lease is covered by provisions of section 9 read with Second Schedule to the MMDR Act The contention of the Petitioners in these Petitions is that the said royalty which was payable prior to the amendment of Rule 64D was at a fixed rate. The grievance of the Petitioners is that on 13/08/2009, Notification was issued amending the Second Schedule to the MMDR Act to prescribe royalty at 10% of sale price on ad-valorem basis in Entry No.22 of the Second Schedule. Further grievance of the Petitioners is that on 10/12/2009, the Central Government amended old Rule 64D of the Mineral Concession Rules and the said amended Rule 64D provided that the Indian Bureau of Mines (“IBM”) shall publish sale price for computation of royalty and that the royalty shall be computed as per formula “Royalty = sale price of mineral (grade-wise and State-wise published by IBM X Rate of royalty (in percentage) X total quantity of mineral grade produced/dispatched. 3. Petitioners have also challenged the directions issued by Respondent No.1 dated 10/12/2009 to the Controller General, IBM with regard to method to be followed by IBM to determine the sale price to be published by IBM for each month in respect of each State. IBM was to take into account weighted average price per metric tonne of Pit Mouth Value (“PMV”) of the mineral ore as reported by the top 10 non-captive producers, or actual number of non-captive producers, whichever is less in monthly returns under the Mineral Conservation and Development Rules, 1988 (hereinafter referred to as “MCDR Rules”). IBM was to take into account weighted average price per metric tonne of Pit Mouth Value (“PMV”) of the mineral ore as reported by the top 10 non-captive producers, or actual number of non-captive producers, whichever is less in monthly returns under the Mineral Conservation and Development Rules, 1988 (hereinafter referred to as “MCDR Rules”). Some of the Petitioners have also challenged the other orders passed by the Goa Port Trust. 4. We have heard the learned Counsel appearing on behalf of the Petitioners in each of these cases and the learned Counsel appearing on behalf of Respondents at length. 5. Following questions fall for our consideration in this group of Petitions:- (1) Whether the Notification issued by the Central Government dated 13/8/2009 is ultra vires Section 9(3) of the MMDR Act? (2) Whether the amended Rule 64D is ultra vires of sub-section (3) of Section 9 of the MMDR Act? (3) Whether the directive dated 10/12/2009 is ultra vires of the provisions of Section 9(3) of the MMDR Act? (4) Whether the Order dated 16/6/2010 issued by the Captain of Ports is illegal and invalid? 6. Petitioners in all these Petitions have been granted mining lease and pursuant to the terms and conditions of the said lease, they have been mining ore and selling it in the local market or exporting it to other countries. Principal grievance of the Petitioners is that Rule 64D which was substituted by G.S.R. 883(E) included iron ore for the purpose of calculating the manner of payment of royalty on minerals on ad valorem basis. Their contention is that the IBM has been authorized to publish royalty figure on the basis of fixed formula mentioned in the said Rule. Their contention is that Respondent No.1 issued directions to the Controller General of IBM by letter dated 10/12/2009 directing them to follow the method to determine sale prices which were to be published by IBM for each month in respect of each State. By the said letter IBM was directed to take into account the weighted average price per metric tonne of Pit Mouth Value (PMV) of the mineral ore as reported by the top 10 non-captive producers, or actual number of non-captive producers, whichever is less in monthly returns under MCDR Rules. By the said letter IBM was directed to take into account the weighted average price per metric tonne of Pit Mouth Value (PMV) of the mineral ore as reported by the top 10 non-captive producers, or actual number of non-captive producers, whichever is less in monthly returns under MCDR Rules. The objection of the Petitioners is that the said amendment is violative of the substantive provision of section 9 which gives power to fix royalties in respect of mining lease. Secondly, it is contended that under section 9(3) of MMDR Act, the Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable. It is contended that the method which is adopted by Respondents is beyond the purview of the said sub-section (3) of section 9 inasmuch as the Central Government only has a power either to enhance or reduce the rate but does not have power to prescribe a new method of computing the rate at which the royalty is paid. It is contended that the Central Government has amended Second Schedule and has fixed the rate of royalty at 10% ad valorem. It is, therefore, contended that the said amendment is ultra vires to the provisions of section 9(3) of the MMDR Act. Thirdly, it is contended that proviso to subsection (3) of Section 9 clearly provides that Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years. The contention of the Petitioners is that by virtue of the said amendment and more particularly amendment to Rule 64D of the Mineral Concession Rules, IBM can now change the rate every month by publishing the sale price of the iron ore every month and, therefore, that is contrary to proviso to sub-section (3) of section 9 that there should be fixed rate for three years. 7. Before taking into consideration rival submissions, it would be relevant and necessary to take into consideration the provisions of the MMDR Act and the Rules framed thereunder. 8. Preamble of the MMDR Act mentions that it is an Act for the development and regulation of mines and minerals under the control of the Union. Under the definition clause, section 3(a) defines “minerals” to include all minerals except mineral oils. 8. Preamble of the MMDR Act mentions that it is an Act for the development and regulation of mines and minerals under the control of the Union. Under the definition clause, section 3(a) defines “minerals” to include all minerals except mineral oils. Section 3(e) defines “minor minerals” and includes building stones, gravel, ordinary clay, ordinary sand etc. Iron ore, therefore, is a major mineral. Section 9 prescribes the manner in which royalties are to be paid. The said section reads as under:- “9. Royalties in respect of mining leases.- (1) The holder of mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any [mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee] from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. (2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any [mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee] from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. [(2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one-third of a tonne per month.] (3) The Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: [Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of [three years].” Section 9(1), therefore, prescribes that holder of a mining lease should pay royalty at the rate specified in the Second Schedule. Iron ore falls under Entry No.22 of the Second Schedule. The entry reads as under:- 22. Iron ore falls under Entry No.22 of the Second Schedule. The entry reads as under:- 22. Iron ore: Lumps, Fines and concentrates all grades Ten percent of sale price on ad valorem basis Sub-section (3) of section 9 permits the Central Government to amend the Second Schedule by issuing a Notification in the Official Gazette only for the purpose of enhancing or reducing the rate of royalty. Proviso to sub-section (3) provides that the Central Government shall not enhance the rate of royalty more than once during any period of three years. By virtue of power vested in Central Government under sub-section (3), the Second Schedule now has been amended and the rate of royalty is now increased to 10% of sale price on ad valorem basis. Prior to this amendment, rate was payable per tonne of iron ore which was increased from time to time.” 9. Section 13 of the MMRD Act empowers the Central Government to make rules in respect of minerals. Pursuant to the said power vested in the Central Government, the Mineral Concession Rules, 1960 have been framed. At this stage, it has to be taken into consideration that under section 13, the Central Government has the power to make rules for regulating the grant of reconnaissance permits, prospecting licences and mining leases and section 2(a) states that such rules may provide the manner in which fees are to be paid. In view of the said power vested in the Central Government, provision of manner of payment of royalty on minerals on ad valorem basis has been provided under Rule 64D. Before amendment to the Second Schedule in Entry No.22 in respect of iron ore, fees were not payable on ad valorem basis. Rule 64D of the of the Mineral Concession Rules, 1960 was not applicable to iron ore though it was applicable to other minerals on which ad valorem fees were levied. However, since by amendment of the Second Schedule, fees which is prescribed is 10% of the sale price on ad valorem basis, Rule 64D also has been amended and the rate at which the royalty is to be fixed has been prescribed. 10. Section 18 of MMDR Act also empowers the Central Government to frame Rules regarding regulation, conservation and systematic development of minerals in India and for the protection of environment. Accordingly, Central Government has framed the MCDR Rules. 11. 10. Section 18 of MMDR Act also empowers the Central Government to frame Rules regarding regulation, conservation and systematic development of minerals in India and for the protection of environment. Accordingly, Central Government has framed the MCDR Rules. 11. The validity of provisions of section 9(3) of MMDR Act was challenged and the Apex Court was pleased to uphold the validity of the said section in State of Madhya Pradesh vs. Mahalaxmi (1995) 1 SCC 642 ). Petitioners have, therefore, not challenged the validity of section 9(3) of the MMDR Act but have contended that the amendment which has been made in the Second Schedule is ultra vires Section 9(3) of the MMDR Act. In the said case, two main questions were decided by the Apex Court viz (I) whether section 9(3) of the MMDR Act is ultra vires to the Constitution and (ii) whether the Notification dated 01/08/1991 issued by the State Government under section 9(3) of the Act is ultra vires, illegal and inoperative. Petitioners in the said Petition had complained that Notification under section 01/08/1991 issued by the Union of India fixing new rates of royalty on various varieties of coal was illegal and inoperative on various grounds. It was contended that before 01/08/1991, royalty was payable at Rs 6.50 per tonne but this was sought to be increased to 120 per tonne by the new Notification. It was contended that the Notification which was issued under section 9(3) of the MMDR conferred unguided, unchannelized and arbitrary discretion to the Central Government to increase the rates of royalty to any higher amount since no guidelines were provided for effecting the said increases either under this section or elsewhere in the Act and, therefore, section itself was an instance of excessive delegation of essential legislative power and, therefore, it was void. In the light of the said challenge, the Apex Court considered the provisions and while upholding the validity of the said section 9(3) has considered various aspects. 12. In this case, reliance is placed on the observations made by H.W.R Wade & C.F. Forsyth in their authoritative treaties on Administrative Law (Ninth Edition). In the light of the said challenge, the Apex Court considered the provisions and while upholding the validity of the said section 9(3) has considered various aspects. 12. In this case, reliance is placed on the observations made by H.W.R Wade & C.F. Forsyth in their authoritative treaties on Administrative Law (Ninth Edition). While considering the question of delegation of power, the learned author has observed as under:- “SURRENDER, ABDICATION, DICTATION Power in the wrong hands Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them”......... Reliance is also placed on the judgment of the Apex Court in State of U.P and Others vs. Maharaja Dharmander Prasad Singh and Others (1989) 2 SCC 505 ). 13. The first question which falls for consideration is: whether the amendment made by the Central Government to the Second Schedule changing the royalty “from fixed rate per tonne to percentage on sale price on ad valorem basis” is ultra vires Section 9(3) of the MMDR Act. 14. Mr. Sonak, the learned Counsel appearing on behalf of the Petitioner in Writ Petition No.331 of 2012 and Writ Petition No.735 of 2010 submitted that the Parliament in enacting MMDR Act, 1957 had already determined the minerals in respect of which royalty shall be charged upon “fixed rate per tonne basis”. He submitted that in respect of commonly found minerals like Asbestos, China Clay, Graphite, Iron Ore, Quarts, Silica, etc., the royalty payable was on “fixed rate per tonne basis”. He submitted that for relatively uncommon/rate minerals, royalty was levied on “percentage of sale price on ad valorem basis”. He submitted that in respect of commonly found minerals like Asbestos, China Clay, Graphite, Iron Ore, Quarts, Silica, etc., the royalty payable was on “fixed rate per tonne basis”. He submitted that for relatively uncommon/rate minerals, royalty was levied on “percentage of sale price on ad valorem basis”. He further submitted that in cases where the Parliament was of the opinion that the “sale price” depends upon the prices fixed by specified agencies, the Parliament in terms provided that royalty shall be payable as percentage of “London Metal Exchange Price” or “London Bullion Market Association Price”. He submitted that Schedule to the Act being part of the Act, it has to be read together with the Act for all purposes of construction. He relied upon the judgment in M/s Aphali Pharmaceuticals Ltd vs. State of Maharashtra ( 1989(4) SCC 378 ) (para 31). Secondly, he submitted that Section 9(3) of MMDR Act deals with the power to the Central Government to fix the rate of royalty. However, the Act has circumscribed the power of the Central Government to amend the Second Schedule “so as to enhance or reduce the rate” at which the royalty would be payable in respect of any mineral effect from such date as may be specified in the Notification. He submitted that by virtue of changing the method of charging tax, the Central Government had acted beyond the power delegated to it and it was ultra vires of the substantive Section 9(3) of the MMDR Act. He submitted that by adopting the percentage of sale price on ad valorem basis, the Central Government had changed the criteria of levy of tax and he submitted that the Central government could either enhance the tax or reduce it. He submitted that, therefore, it was open for the Central Government to have increased the rate at which the tax was to be paid per tone but it was not open to change the method in which the tax was to be levied. It is submitted that there was no delegation of power to the Central Government to change the very basis of levy and, therefore, the action of the Central Government is ultra vires to Section 9(3) of the MMDR Act. It is submitted that there was no delegation of power to the Central Government to change the very basis of levy and, therefore, the action of the Central Government is ultra vires to Section 9(3) of the MMDR Act. It is, therefore, submitted that in the matter of delegation legislation, a delegate can under no circumstances exceed its authority or make any provision inconsistent with the Parent Act, as also the Legislative Policy enshrined in the Parent Act. Reliance has been placed on the judgments in Kerala Saunstha vs. State of Kerala ( 2006(4) SCC 327 ) (Paras 26 to 34), Clariant International Limited vs. SEBI ( 2004(8) SCC 524 ) (Para 63), Hotel Balaji vs. State of A.P. (1993 Supp.(4) SCC 536) (Para 31). 15. Mr. Diniz, the learned Counsel appearing on behalf of the Petitioner in Writ Petition No.264 of 2011 submitted that he had also challenged in his Petition that the prices determined and published by IBM as iron ore sale prices in the State of Goa from August 9, 2009 onwards in respect of iron ore Fe content of 60% is illegal and void. He submitted that the entire royalty including taxes had been borne by the Petitioner and no part of it had been passed over to any purchasers of iron ore. He, therefore, submitted that the Petitioners were entitled to refund of additional royalty paid by them from August 2009 onwards. He then submitted that at the highest the Respondents could recover 10% of ad valorem duty on the basis of actual sale price of the Petitioners and not on the basis of average of top ten non-captive purchasers. He submitted that each purchaser of iron ore would have different overhead cost which, in turn, would change the sale price. He submitted that, therefore, there was no rationale behind calculating and determining the price on the basis of iron ore realized by the top ten non-captive purchasers in the Sate of Goa. In the State of Goa, it is submitted, during the month of June to September for five months all mining activities stop and during this period there is no sale of iron ore by the Petitioners, yet, the said period of five months is not excluded, as a result prejudice is caused to the iron ore purchasers in the State of Goa. He pointed out that some of the iron ore purchasers had to sell iron ore @ Rs 300 and above and if the average price was calculated on the basis of methodology adopted by the Respondents, the entire amount would have to be paid towards the royalty of iron ore. He submitted that, therefore, decision of the Central Government was arbitrary, unreasonable and violative of Articles 14 and 19 of the Constitution of India. 16. On the other hand Mr. Amonkar, the learned Counsel appearing on behalf of Union of India submitted that the Union of India had lost lot of revenue since the exact amount of iron ore which was exported or sold was not known to the Central Government and taking advantage of this fact, it was noticed that mining Companies all over the country had caused loss of revenue to the Central Government and, therefore study group was established. He submitted that on the basis of the report of the study group which consisted of experts in the field, the said proposed amendment was made. He submitted that there was no bar in the Act or Rules to change the method of levy of tax. He submitted that in respect of other minerals the Central Government already was levying tax at ad valorem basis and due to the change in the circumstances the said method was adopted also in case of iron ore. He submitted that the Central Government had a right to enhance the rate of tax and, accordingly, the rate of tax was enhanced to 10% of the sale price on ad valorem basis. He submitted that the said percentage was uniform to all the purchasers. He submitted that in State of M.P. vs. Mahalaxmi Fabric Mills Limited (1995 Supp. (1) SCC 642), the validity of Section 9(3) of MMDR Act and Notification which was issued enhancing the rate of coal had been upheld by the Apex Court. He submitted that in view of the said judgment, therefore, there is not merit in the submissions made by the learned Counsel 17. It is an admitted position that the Apex Court had an occasion to interpret the provisions of Section 9 and more particularly Section 9(3) of the said Act. He submitted that in view of the said judgment, therefore, there is not merit in the submissions made by the learned Counsel 17. It is an admitted position that the Apex Court had an occasion to interpret the provisions of Section 9 and more particularly Section 9(3) of the said Act. In Mahalaxmi Fabric Mills Limited (supra), not only the delegation of power to the Central Government for the purpose of revising rate was challenged on the ground that it was ultra vires on various grounds but even the Notification which was issued pursuant to the power given to it under sub-section (3) enhancing the rate from Rs 6.50 per tonne to Rs 120 per tonne was challenged again on various grounds. The Apex Court repelled the said contention and upheld the validity of Section 9(3) of the said Act and also the Notification which was issued by the Central Government in the said case. It would be worth while to take into consideration the observations made by the Apex Court when it rejected the contentions of the Petitioners in the said case. 18. The Apex Court in MahalaxmiFabric Mills Limited (supra) has observed in paras 15, 16 and 18 as under:- “15................. This is obvious as the Act was enacted years back in 1957. The purchasing power of rupee went on falling year after year and decade after decade. Therefore, instead of Parliament itself every time being required to increase the rates, it left to the Central Government to do so but it imposed certain fetters on the power of the Central Government. Firstly, the proviso to Section 9(3) clearly lays down that such enhancement should not be made before the end of four years and now after amendment before the end of three years. This itself indicates guideline laid down by Parliament that the rate of inflation and fall of money value of the rupee should be considered once in three years and that the royalty should be enhanced only once in three years. The second guideline in Section 9(3) is pertaining to the very topic of delegation of such legislative power. The Central Government has to keep in view the original rates mentioned in Second Schedule in connection with different types of minerals and to suggest suitable enhancement once in three years. The second guideline in Section 9(3) is pertaining to the very topic of delegation of such legislative power. The Central Government has to keep in view the original rates mentioned in Second Schedule in connection with different types of minerals and to suggest suitable enhancement once in three years. The second guideline in Section 9(3) is pertaining to the very topic of delegation of such legislative power. The Central Government has to keep in view the original rates mentioned in Second Schedule in connection with different types of minerals and to suggest suitable enhancement once in three years depending upon the requirements of the States concerned for whom the royalty is meant................ There are sufficient guidelines from the Act to enable the Central Government to exercise its delegated legislative function in a just and proper manner keeping in view the uniform development of minerals throughout the country. In this connection it is also necessary to keep in view Section 128 sub-section (2) which provides that every rule or notification made by the Central Government be placed before each House of Parliament for a total period of 30 days in one session or two or more successive sessions and if both Houses agree in making any modification in the rule of notification or both Houses agree that the rule of notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be. When such a safety valve is provided it cannot be said that the exercise of delegated legislative power by the Central Government in the first instance under Section 9(3) would suffer from any excessive delegation of legislative power or effacement of legislative power of Parliament.” (Emphasis supplied) “16. ….............. There are sufficient guidelines as to for what purpose the royalty can be enhanced as discussed hereinabove, once in three years. In this connection we may profitably refer to the decision of this Court in the case of M.K. Papiah v. Excise Commr [ (1975) 1 SCC 492 : 1975 SCC (Tax) 128 : AIR 1975 SC 1007 ]. In that case this Court was concerned with the question of constitutional validity of Section 22 of Karnataka Excise Act. Section 22 conferred power on the Government to fix rates of excise duty. In that case this Court was concerned with the question of constitutional validity of Section 22 of Karnataka Excise Act. Section 22 conferred power on the Government to fix rates of excise duty. There was no guideline in Section 22 about upper limit of the duty which could be fixed. Repelling the contention that this had resulted in excessive delegated power, Mathew, J. speaking for this Court held that power conferred on the Government by Section 22 was valid. From the mere fact that it is not certain whether the preamble of the Act gives any guidance for fixing the rate of excise duty, it cannot be said that the legislature has no control over the delegate; that requirement of laying of rules before the legislature is control over delegated legislation. The Legislature may also retain its control over its delegate by exercising its power of repeal.” (Emphasis supplied) “18................. The report of the study group clearly shows that rate of royalty as earlier enhanced in 1981 had not been, however, further enhanced for all these years and that in the meantime attempts by the States to raise the rates of royalty by way of imposed cesses on royalty were found to be ultra vires the State Legislature and in these circumstances it was necessary to enhance the rates of royalty on various types of coal. It is thereafter that the said notification was issued by the Central Government invoking its power under Section 9(3)........” Similarly in para 19 and 20 of the said judgment the Supreme Court has observed as under:- “19............... The purpose of the Union control envisaged by Entry 54 and the MMRD Act, 1957, is to provide for proper development of mines and minerals areas and also to bring about a uniformity all over the country in regard to the minerals specified in Schedule I in the matter of royalties and, consequently, prices. Rangnathan, J. agreed with Mr. Bobde who appeared for Central Government that prices of minerals for exports were fixed and could not be escalated with the enhancement of the royalties and that if different royalties were to be charged by different States, their working would become impossible. There appeared to be force in this submission. Rangnathan, J. agreed with Mr. Bobde who appeared for Central Government that prices of minerals for exports were fixed and could not be escalated with the enhancement of the royalties and that if different royalties were to be charged by different States, their working would become impossible. There appeared to be force in this submission. As pointed out in India Cement Case, the Central Act bars an enactment of the royalty directly or indirectly, except by the Union and in the manner specified by the 1957 Act.” “20. It becomes, therefore, clear that enhancing uniformly rates of royalty for the entire country even though minerals might be extracted from different State's territory is necessary for having uniform pattern of price of minerals and that has a direct linkage with the development of minerals. It is also to be kept in view that regulating the rates of royalty on extraction of minerals has also an important role to play in opening up new mining areas for winning minerals. On the question, whether the impugned Notification was a piece of colourable exercise of power and, therefore, null and void, the Apex Court in para 24 of the said judgment has observed as under:- “24. It is obvious that this aspect of colourable legislation would not strictly apply while judging the legality of the exercise of the delegated legislative function. In fact, it could not be contended by learned counsel for the writ petitioners that the Central Government had no power to act under Section 9(3). Therefore, in the strict sense, there is no question of the said notification being a piece of colourable legislation touching upon the power of some other authority functioning under any other provision of delegated legislation. However, it has also to be observed that even in cases of delegated legislation, there are well defined limitations beyond which if such an exercise projects itself, it would become ultra vires the provision permitting such an exercise. We may profitably refer to a decision of this Court in case Indian Express Newspapers (Bombay) (P) Ltd v. Union of India [(1985) 1 SCC 641: 1985 SCC (Tax) 121 : AIR 1986 SC 515]. We may profitably refer to a decision of this Court in case Indian Express Newspapers (Bombay) (P) Ltd v. Union of India [(1985) 1 SCC 641: 1985 SCC (Tax) 121 : AIR 1986 SC 515]. A bench of three learned Judges of this Court speaking through Venkataramiah, J., as he then was, in connection with notification issued under Section 25 of the Customs Act which was a piece of subordinate legislation has made the following observations : (SCC p. 689, para 75) “A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”.............. “ 19. The Apex Court, therefore, in MahalaxmiFabric Mills Limited (supra), has clearly upheld that there are inherent safeguards which have been provided while delegating the power to the Central Government for the purpose of revising the rate of levy on account of inflation etc in subsequent years and the Apex court has observed that the revision of rates by amendment of the Second Schedule which is a part of the Act has to be placed before the Parliament. The Apex Court has observed that this would act as a safety valve to ensure that the Central Government to whom the power is delegated to revise the rate has properly exercised the said function. 20 It has been strenuously urged that the Central Government could either enhance the rate or reduce the rate but could not change the method of charging the tax. It has been vehemently submitted that by virtue of changing levy from “per tonne basis” to “ad valorem basis”, the Central Government had acted beyond the scope of power which was delegated to it under sub-section (3) of Section 9 of the Act. It has been vehemently submitted that by virtue of changing levy from “per tonne basis” to “ad valorem basis”, the Central Government had acted beyond the scope of power which was delegated to it under sub-section (3) of Section 9 of the Act. It is submitted that the method which has been adopted by IBM for the purpose of arriving at the sale price was arbitrary unreasonable and irrational. In our view, the said submissions are without any substance. The validity of sub-section (3) of Section 9 has already been upheld by the Apex court in Mahalaxmi Fabric Mills Limited (supra). So far as the contention of the Counsel Mr. Sonak and Mr.Diniz appearing on behalf of their respective Petitioners in respective Writ Petitions cannot be accepted, though it has been argued that commonly found minerals such as iron ore etc the royalty payable was on “fixed rate per tonne basis” and in respect of other minerals on “percentage of sale price on ad valorem basis”. The said submission is also without any substance. It is possible that at the relevant time in respect of some minerals royalty was made payable on fixed rate per tone basis and in respect of other minerals on percentage of sale price on ad valorem basis. However, that does not mean that the Central Government's power is restricted and that the Central Government cannot alter the mode of payment of royalty from fixed rate per tonne basis to percentage of sale price on ad valorem basis. As observed by the Apex Court in Mahalaxmi Fabric Mills Limited (supra), Parliament had delegated power of fixing the price to the Central Government and had ensured that the said amendment made by the Central Government in Second Schedule is placed before the Parliament so as to give its approval to the amendment suggested by the Central Government and only after the Parliament had approved those rules, those amendment could be brought into force. In the present case also, it is an admitted position that the amendment which was made by the Central Government to Entry No.22 in respect of the iron ore of changing royalty payable from “per tonne basis” to “ad valorem basis” was placed before the Parliament and it was duly approved. In the present case also, it is an admitted position that the amendment which was made by the Central Government to Entry No.22 in respect of the iron ore of changing royalty payable from “per tonne basis” to “ad valorem basis” was placed before the Parliament and it was duly approved. In the affidavit in reply filed by the Central Government, they have pointed out that the study group was appointed who had made in-depth study in respect of the loss of revenue caused to the Central Government and after instances of illegal mining were brought to their notice and in order to pluck the said loophole which had permitted the mining companies to cause loss of revenue to the Government the said amendment was suggested and which was accepted by the Central Government and approval to the said amendment was given by the Parliament. The contention of the Petitioners that the said rate which was arrived at by this method which was adopted by the Central Government was a floating rate and was not uniform rate is also without any substance. The Central Government had suggested a fixed percentage of ad valorem duty on the sale price. The said duty was fixed @ 10%. The rationale behind calculating the average of top ten iron ore mining companies was to ensure that average sale price would take care of all the fluctuations and various factors which could give rise to iron ore being sold at different rates. By taking average of top ten iron ore mining companies, the said anomaly was taken care of. In our view, therefore, the said submission of the Petitioners that the amendment to Entry No.22 is ultra vires Section 9(3) is without any substance. 21. The second question which falls for consideration is whether the amended Rule 64D is ultra vires Section 9 of the MMDR Act on the ground that it was inconsistent with the plain meaning of section 9 read with Item No.22 of the Second Schedule. 22. Mr. 21. The second question which falls for consideration is whether the amended Rule 64D is ultra vires Section 9 of the MMDR Act on the ground that it was inconsistent with the plain meaning of section 9 read with Item No.22 of the Second Schedule. 22. Mr. Dhruv Mehta the learned Senior Counsel appearing on behalf of the Petitioner M/s Lithoferro and another in Writ Petition No.854 of 2010 submitted that as per the impugned amendment, the concept of IBM determined sale price is inserted and as per instruction dated 10.12.2009, average sale price is to be calculated and determined by the IBM on the basis of the prices of iron ore realized by the top 10 non-captive producers in the State in a month. It is submitted that a departure from Section 9 is that Section 9(2) read with Item No.22 of the Second Schedule does not permit demand for royalty to be raised on the basis of a notional/average sale price of iron ore and that Section 9 requires royalty payable to be calculated on a sale by sale basis, and not on an average of the sale price for the month. He submitted that, therefore, Rule 64D is, therefore, ultra vires Section 9 read with Item No.22 of the Second Schedule to the said Act. He submitted that the Schedule is a part of the Act. He relied on the judgment of the Apex court in M/s Aphali Pharmaceuticals Ltd vs. State of Maharashtra ( 1989(4) SCC 378 ) (para 31). He submitted that the Rule cannot go beyond the Parent Act and in support of the said submission, he relied on the following authorities viz (I) 2006 (4) SCC 327 , (ii) 2007 (2) SCC 365 , (iii) 1983 (2) SCC 402 and (Iv) 2011 (8) SCC 274 . 23. The next contention which was raised by Mr. Dhruv Mehta, the learned Senior Counsel is that the amended Rule read with the instructions dated 10/12/2009 is ultra vires Section 9 since by its operation, the rate of royalty would be inevitably enhanced several times with the change in the prices of iron ore to be worked out by IBM monthly. It is contended that this is contrary to proviso to Section 9(3) which prohibits enhancement in rate of royalty more than once in three years. It is contended that this is contrary to proviso to Section 9(3) which prohibits enhancement in rate of royalty more than once in three years. He further submitted that since the IBM was directed to calculate the average sale price every month on the basis of sale prices realized by top ten lessees, the amount of royalty is liable to be changed every time the average sale price increases, which may even occur on a monthly basis. He submitted that the object of section 9 as envisaged by the Hon'ble Supreme Court in State of M.P. Vs. Mahalaxmi Fabirc Mills Limited (1995 Supp. (2) SCC 642) of uniformity in the rate of royalty while upholding the validity of Section 9(3) of the Act is given a complete go by. He submitted that this was also contrary to the proviso to Section 9(3) which expressly prohibits enhancement in the rate of royalty more than one in three years. He then submitted that the amended Rule and the instruction dated 10/12/2009 of the Central Government to the IBM, and the resultant rates fixed by the IBM are arbitrary and violative of Article 14 of the Constitution. He invited our attention to various charts disclosing monthly returns filed by the top ten companies and pointed out how the said average sale price work unfavourably in respect of those persons whose sale price was less and benefit those companies who had sold iron ore at a very high rate. In this context he made the following submissions. (i) Method of calculation does not take into consideration various factors in determining the sale price of the iron ore such as duration of contract for supply of iron ore, the percentage of iron ore etc., resulting in vast gap between the averag sale price determined by the IBM and the actual price realized by the lessee. (ii) Sale prices fixed for Goa is seveal times more than the sale price fixed for the other States. (iii) Although there is no mining activity in Goa during June to September (and no sale of iron ore) sale price have been published for this period as well therefore, calculation appears to be hypothetical. (ii) Sale prices fixed for Goa is seveal times more than the sale price fixed for the other States. (iii) Although there is no mining activity in Goa during June to September (and no sale of iron ore) sale price have been published for this period as well therefore, calculation appears to be hypothetical. (iv) Pit Mouth Value of top ten non captive produces have been mentioned in the affidavit in reply which shows that PMV varies from Rs 385/- to Rs 4170/-, the weighted average for July, 2010 being Rs 3065/-. It is contended that thus, therefore, the purchaser whose sale value is Rs 385/- pays Rs 306.50 as royalty as also the producer whose sale value is Rs 4170/-. He submitted that, therefore royalty of Rs 306.50 for the producer whose PMV is Rs 385/- becomes confiscatory. It is then contended that the impugned rule seeks to determine the manner of payment of royalty by redetermining sale price which is to be fixed by IBM. It is contended that Rule 64D does not explain how IBM will fix sale price of iron ore and, therefore, the Rule suffers from vice of vagueness. It is contended that the Rule does not talk of weighted average price of top ten producers and, therefore, there is no determinative criteria for working out sale price of iron ore. It is then contended that the Rule could not override private contracts without there being a non obstante clause. Reliance has been placed on Section 269 of UD of Income Tax Act, 1962 and the judgment of the Apex Court in 1986 4 SCC page 447 (paras 57, 68). He then submitted that the statutory Rule cannot be supplemented by the executive order unless the Statute itself gives power. Reliance has been placed on the judgment of the Apex Court in (2001) 8 SCC 378 and (2006) 10 SCC 399 . Lastly, it is contended that under section 13(2)(c) the power of the Central government was to fix the manner of payment of royalty. It is submitted that the “manner” would envisaged whether payment is to be made on quarterly returns, staggered returns etc but it would not taken within its ambit the power to recompute sale price of iron ore. Lastly, it is contended that under section 13(2)(c) the power of the Central government was to fix the manner of payment of royalty. It is submitted that the “manner” would envisaged whether payment is to be made on quarterly returns, staggered returns etc but it would not taken within its ambit the power to recompute sale price of iron ore. It is, therefore, submitted that the excess amount paid before the interim order dated 22.3.3011 is liable to be refunded and bank guarantees are liable to be discharged/returned. 24. Mr. Sonak and Mr. Diniz appearing on behalf of the their respective Petitioners in respective Petitions in this context submitted that by changing the basis of levy and determination of royalty as per amended Rule, there was enhancement in royalty practically each month. It is contended that this was ex facie contrary to the mandate of the proviso to section 9(3) of the MMDR Act which provides that price could be enhance once in three years. It is then contended that Rule 64D permits some delegation in favour of IBM. It is contended that it is impermissible on the basis of well settled doctrine Delegatosnon-potest delegare. It is contended that the Rule indicates that the Central Government has delegated power to effectively determine the rate of royalty to IBM which is impermissible under the said doctrine. It is then contended that even otherwise Rule 64D confer unguided and unfettered discretion on IBM to determine the sale price and consequently to fix the rate of royalty and, therefore, violative of Articles 14 and 19 (1)(g) of the Constitution of India. 25. Though the submissions made by the learned Counsel appearing on behalf of the Petitioners appear to be very attractive at the first blush, however, on closer and deeper scrutiny and after taking into consideration the stand taken by the Central Government, we find that there is no substance in the said submission. 26. It will be relevant to have a look at amended Rule 64D which reads as under:- “64D. 26. It will be relevant to have a look at amended Rule 64D which reads as under:- “64D. Manner of payment of royalty on minerals on ad valorem basis.- Every mine owner, his agent, manager, employee, contractor or sub-lessee shall compute the amount of royalty on minerals where such royalty is charged on ad valorem basis, as follows:- (i) for all non-atomic and non fuel minerals sold in the domestic market or consumed in captive plants or exported by the mine owners (other than bauxite and laterite dispatched for use in alumina and metallurgical industries, copper, lead, zinc, tin, nickel, gold, silver and minerals specified under Atomic Energy Act), the State-wise sale prices for different minerals as published by Indian Bureau of Mines shall be the sale price for computation of royalty in respect of any mineral produced any time during a month in any, mine in that State, and the royalty shall be computed as per the formula given below: Royalty=Sale price of mineral (grade wise and State-wise) published by IBM X Rate of royalty (in percentage) X Total quantity of mineral grade produced/dispatched: Provided that if for a particular mineral, the information for a State for a particular month is not published by the Indian Bureau of Mines, the latest information available for that mineral in the State shall be referred, failing which the latest information for All India for the mineral shall be referred. (ii) for the grades of minerals produced for captive consumption (other than bauxite and laterite dispatched for use in alumina and metallurgical industries, copper, lead, zinc, tin, nickel, gold and silver) and those not dispatched for sale in domestic market or export, the sale price published by the Indian Bureau of Mines shall be used as the bench mark price for computation of royalty. (iii) for primary gold, silver, copper, nickel, tin, lead and zinc, the total contained metal in the ore or concentrate produced during the period for which the royalty is computed and reported in the statutory monthly returns under Mineral Conservation and Development Rules, 1988 or recorded in the books of the mine owners shall be considered for the purpose of computing the royalty in the first place and then the royalty shall be computed as the percentage of the average metal prices published by the Indian Bureau of Mines for primary gold, silver, copper, nickel, tin, lead and zinc during the period of computation of royalty as follows: Royalty=sale price X rate of royalty in percentage. Where sale price=Average price of metal as published by Indian Bureau of Mines during the month X Total-contained metal in ore or concentrate produced X Rupee or Dollar exchange rate selling as on the last date of the month of computation of royalty: Provided that in case of by-product gold and silver the royalty shall be based on the total quantity of metal produced and such royalty shall be calculated as follows: Royalty = Sale price X rate of royalty in percentage. Explanation.-For the purpose of this sub-clause sale price means, average price of metal as published by Indian Bureau of Mines during the month X Total byproduct metal actually produced X Rupee or Dollar Exchange rate selling as on the last date of the month of computation of royalty. Explanation.-For the purpose of this sub-clause sale price means, average price of metal as published by Indian Bureau of Mines during the month X Total byproduct metal actually produced X Rupee or Dollar Exchange rate selling as on the last date of the month of computation of royalty. (iv) for bauxite or laterite ore dispatched for use in alumina and aluminium metal extraction or dispatched to alumina or aluminium metal extraction, industry within India, the total contained alumina in the bauxite or laterite ore on dry basis produced during the period for which the royalty is computed and reported in the statutory monthly returns under Mineral Conservation and Development Rules, 1988 or recorded in the books of the mine owners shall be considered for the purpose of computing the royalty in the first place and then the royalty shall be computed as the percentage of the average monthly price for the contained aluminium metal in the said alumina content of the ore published by the Indian Bureau of Mines, on the following basis namely:- Provided that for computing the royalty for bauxite or laterite dispatched for end use other than alumina and aluminium metal extraction and for exports provisions of this clause shall not apply. (2) In case of metallic ores based on metal contained in ore and metal prices based on benchmark prices, the royalty shall be charged on dry basis, and the mine owner shall establish suitable facilities for collection of sample and Its analysis on dry basis at the mine site.] ” 27. Firstly, the concept of levy on ad valorem basis is not new. It has been in vogue in respect of other minerals for quite some time. We examined the Second Schedule. We noticed that there are number of minerals on which duty is charged on ad valorem basis. For example Entry No.11. Columbite-tantalite – Ten per cent, of sale price on ad valorem basis, Entry No.13 Diamond – Eleven point five per cent on sale price on ad valorem basis, Entry No.15. Felspar – Twelve per cent of sale price on ad valorem basis, Entry No.18. Garnet: (a) Abrasive – Three per cent of sale price on ad valorem basis, (b) Gem – Ten per cent of sale price on ad valorem basis. Felspar – Twelve per cent of sale price on ad valorem basis, Entry No.18. Garnet: (a) Abrasive – Three per cent of sale price on ad valorem basis, (b) Gem – Ten per cent of sale price on ad valorem basis. There are number of other minerals on which levy is based on certain per cent of sale price on ad valorem basis. The Central Government, therefore has discretion to charge the tax on ad valorem basis. There is no foundation to the argument that commonly available minerals such as Asbestos, China Clay, Graphite, Iron Ore, Quarts Silica etc are to be charged on per tonne basis and the rare minerals are to be charged on ad valorem basis. Firstly, there is no such provision either in the Act or Rules. Secondly, discretion has been given to the Central Government to determine the price of royalty which has to be paid. In our view, therefore, it cannot be said that the Central Government has changed the method of levy of tax and that they are not permitted to do so under subsection (3) of Section 9 of the said Act which speaks about enhancing or reducing the rate once in three years. Respondents have given valid reasons for the purpose of effecting such change. 28. Another objection which has been raised is that the IBM has delegated its power to determine the sale price to third party which is not permitted and it amounts to subdelegation. Firstly, this is not the first time when the price is to be determined by a third agency. Perusal of the Second Schedule clearly shows that in respect of several minerals price is fixed by International Body such as London Bullion Market Association , commonly referred to as “London Price” or on percentage of London Metal Exchange Copper Metal Price. In the past, therefore, reliance has been placed on International standard sale price in respect of certain minerals. In the case of iron ore since there is no standard International price available, Respondents have permitted IBM which has the entire statistical data available with it to determine the realistic sale price after taking into consideration the average of top ten non-captive producers which is evident from the affidavit in reply filed by the Respondents. 29. In the case of iron ore since there is no standard International price available, Respondents have permitted IBM which has the entire statistical data available with it to determine the realistic sale price after taking into consideration the average of top ten non-captive producers which is evident from the affidavit in reply filed by the Respondents. 29. On this background, it is necessary to see certain other provisions of the said Act and Rules which are framed thereunder. Under Rule 45 of the Mineral Conservation and Development Rules, 1988, the owner, agent, mining engineer or manager of every mine is supposed to get himself registered with the Indian Bureau of Mines as per the application specified in Form M and, thereafter, he has to maintain the register giving details of all persons engaged in trading or storage or end-use or export of minerals which should be made available to the general public and also posted on the website of the Indian Bureau of Mines. Further, monthly return has to be filed in a prescribed form before the 10th of every month. The other details which are to be provided are elaborately mentioned in the said Rule 45. As a result of this material which is made available to IBM and that the statistical data in respect of declaration made by every mining company in respect of sale price of iron ore of each grade is available with the IBM not only from month-to-month but also from annual returns which are filed. The IBM is therefore in possession of all statistical data on the basis of which realistic figure of the sale price can be determined. It has been rightly submitted by the learned Counsel appearing on behalf of the Respondents that though average sale price may vary from time to time, percentage of royalty which is charged is fixed which is 10% of the sale price. The contention of the Petitioners, therefore, that there is a floating price and there is violation of provision to sub-section (3) of Section 9 of the said Act is without any substance. 30. So far as Rule 64D is concerned, the said Rule prior to the amendment, laid down the guidelines for computing royalty on minerals on ad valorem basis. The contention of the Petitioners, therefore, that there is a floating price and there is violation of provision to sub-section (3) of Section 9 of the said Act is without any substance. 30. So far as Rule 64D is concerned, the said Rule prior to the amendment, laid down the guidelines for computing royalty on minerals on ad valorem basis. Prior to the amendment, iron ore was not included in the said Rule, obviously because, before amendment, the tax which was chargeable was on per tonne basis and, therefore, there was no occasion to include iron ore in Rule 64D which specifically prescribes payment of royalty on ad valorem basis after the Second Schedule was amended by the Central Government and instead of charging on per tone basis, the tax was levied on ad valorem basis and subsequent to the said change, thereafter, iron ore also has been inserted in Rule 64D and a new Rule, therefore for that purpose was substituted for the old Rule. Rule 64D(1) gives formula for the calculation of the royalty which has been already reproduced hereinabove. The said Rule clearly indicates that the rate of royalty in percentage is uniform and is not changed. The submission made by the learned Counsel appearing on behalf of the Petitioners in each of these cases that by this method, the prices of royalty would change practically every month is without any substance because in respect of other minerals also, the ad valorem duty is charged on the sale price. The sale price in respect of these minerals also changes and varies from time to time. Had the rate of ad valorem duty changed i.e. if the percentage of 10% is changed within three years, in that case it would be violation of section 9(3). 31. In this context, it would be relevant to see the stand of the Respondents in their reply wherein they have elaborately pointed out the reasons for charging the tax on ad valorem basis of the sale price instead of per tone basis. In para 9 of the affidavit in reply, it has been stated that since the royalty rate is based on ad valorem basis, the actual royalty payable would be based on the price of mineral as published by the IBM based on the pit mouth value of mineral reported by the miners in their monthly and annual returns. In para 9 of the affidavit in reply, it has been stated that since the royalty rate is based on ad valorem basis, the actual royalty payable would be based on the price of mineral as published by the IBM based on the pit mouth value of mineral reported by the miners in their monthly and annual returns. The pit mouth value is calculated by the miners based on the sale price of the mineral less deductions (like freight charges paid, handling charges, loading charges etc) which may vary from month to month for each mine. It is contended that since pit mouth value varies, the average price, which is calculated on the basis of pit mouth value also varies. It is contended that even though rate of royalty remains unchanged, the actual royalty payable varies per month on account of variation in pit mouth value. It is contended that determination of royalty on ad valorem principle is accepted international practice. 32. It is further stated in para 11 of the affidavit in reply that prior to 2000, guidelines had been issued by the Central Govt. to the miners for calculating the pit mouth value of a mineral from the sale price as given in the invoice or FOB bills after allowing deductions for the purpose of computation of royalty on ad valorem basis vide GSR 743(E) dated 25/9/2000. it is averred that these guidelines were given statutory effect by prescribing the manner of computation of royalty in terms of the guidelines in Rule 64D of Mineral Concession Rules, 1960. Initially, the IBM did not have a role in calculation of pit mouth value in this scheme. It is contended that subsequent to the year 2000, the Industry and the State Government expressed administrative problems in calculating the pit mouth value of minerals using each individual invoice and the matter was considered by Mineral Advisory Council on 21/9/2000, and referred to a Study Group in the Ministry of Mines (which consisted of representatives of State Govt. and Industry Association) for evolving an alternative method and there was a general consensus in the Study Group that apart from the minerals like copper, gold, lead etc for which international benchmark prices are available, there is a practical difficulty in determining the sale price of other minerals especially in case of captive leases. and Industry Association) for evolving an alternative method and there was a general consensus in the Study Group that apart from the minerals like copper, gold, lead etc for which international benchmark prices are available, there is a practical difficulty in determining the sale price of other minerals especially in case of captive leases. It is further averred that the Study Group recommended that it would be appropriate to use the average sale price, computed by the IBM on the basis of monthly and annual pit mouth value reported by mining lease holders in terms of Rule 45 of the Mineral Conservation and Development Rules, 1988 as a benchmark price for computation of royalty. It is further averred that this recommendation was approved in the Conference of the State Ministers of Mining & Geology held on 22/1/2003 and suitable changes in Rule 64D were made accordingly vide GSR 329(E) dated 10/4/2003 and since then till the Rule 64D was again amended on 10/12/2009, the average sale value of minerals, as published by the IBM, on national and State-wise basis, has been used for computation of royalty for such minerals for which royalty is chargeable on ad valorem basis and not linked to any international benchmark price and the same was used for computation of royalty. 33. It is further contended in para 12 of the affidavit in reply that another Study Group was set up on 24/8/2006 which submitted its report to Government on 27/9/2007, which inter alia recommended that royalty for iron ore, which was being charged on specific rates per tonne to be charged on ad valorem basis at the rate of 10% of sale price and, accordingly, recommendations were accepted since the iron ore prices were not linked to any international benchmark prices and Rule 64D of the MCR was amended on 10/12/2009 and royalty for iron ore was also required to be calculated on the basis of average value of minerals as published by the IBM on national and State-wise basis, which was derived from the pit mouth value reported by each miners on monthly and annual basis to the IBM in terms of Rule 45 of MCDR. 34. 34. In our view, the said explanation clearly reveals that even the Industry had taken a part in this process and had given its approval for the change in the said method and, therefore, it cannot be said to be arbitrary system but it is a well established statistical system with sound basis on the data provided by each mining lease holder to the IBM. It is also rightly contended that Rule 45 has been amended vide GSR 75(E) dated 9/2/2011 so that even FE value below 55% and 55% to below 58% was also taken into consideration, so there has been uniformity in levy of royalty in respect of various grades of iron ore. As a result of the amendment, the fear expressed by the industry about payment of royalty for lower grade iron ore on the basis of price for higher grade iron ore is carefully taken care of. In the affidavit in reply computation of average sale value published by IBM has been given in chart form. The averments made by the Respondents in affidavit in reply, therefore, will have to be accepted as a rational basis explaining the need to incorporate iron ore in Rule 64D and for switching the levy of tax from “per tone basis” to “ad valorem basis”. There is, therefore, no substance in the submissions made by the learned Counsel appearing on behalf of the Petitioners that amendment of Rule 64D is ultra vires to the proviso to sub-section (3) of Section 9. There cannot be any dispute regarding the ratio of the judgments on which reliance has been placed by the learned Counsel for the Petitioners on this point but the said ratio is not applicable to the facts of the present case. We, therefore, do not propose to deal with all the judgments on which reliance has been placed by the Petitioners. 35. The third question, therefore, which falls for consideration is : whether the directive given by the Central Government to the IBM directing them to calculate the sale price by following the method of taking average sale price of top ten non-captive producers, would amount to IBM further delegating its power to the Central Government or other agency. 36. 35. The third question, therefore, which falls for consideration is : whether the directive given by the Central Government to the IBM directing them to calculate the sale price by following the method of taking average sale price of top ten non-captive producers, would amount to IBM further delegating its power to the Central Government or other agency. 36. It is contended that Respondent No.1 has no authority in law to issue such directions to the IBM and, therefore, the said executive instructions are ultra vires of section 9(3) of the MMDR Act and also amounts to violation of the principles of delegated legislation. It is contended that IBM to whom the power is delegated to publish monthly sale price cannot follow the directions given by Respondent No.1 since the IBM to whom rule making power is delegated cannot further delegate the power to Respondent No.1. It is then contended that as a result of the said amendment to Rule 64D, anomaly is created and the final sale price sale price is completely arbitrary and unworkable. Lastly, it is contended that by virtue of the said amendment, a power is given to IBM to determine the sale price of the Petitioners which practically permits IBM to override the contract which is entered into between the parties. 37. The contention of the Respondents, on the other hand, is that there is no violation of Rule 9(3). It is submitted that in respect of other minerals, in the past, ad valorem duties were levied and, as such, it could not be said that by including iron ore in the Second Schedule the provisions of section 9(3) are violated. It is contended that the study group was established taking into account the increase in the mining activities of iron ore and sale of the said mineral in the domestic as well as in foreign market and after analysing the situation, the study group has suggested the said change and accordingly the amendment was made in Rule 64D which was tabled before the Parliament and the said amendment was approved by the Parliament. It is contended that therefore safeguard which is laid down under the said provision has been complied with. It is contended that only four companies out of total number of iron ore mining companies, challenged this provision. It is contended that therefore safeguard which is laid down under the said provision has been complied with. It is contended that only four companies out of total number of iron ore mining companies, challenged this provision. It is further contended that the letter which was written by Respondent No.1 to IBM was pursuant to the query which were made by IBM regarding method which was to be adopted and pursuant to the said inquiry made instructions were given to the IBM by Respondent No.1. Both parties have relied on number of judgments of Apex Court and High Courts which shall be taken into consideration at the appropriate stage. 38. In our view there is no substance in the submissions made by the learned Counsel appearing on behalf of the Petitioners. The said directive is actually a reply given by the Under Secretary to the Government of India to a query made by the IBM regarding the manner of calculation of iron ore price. It cannot be said that the IBM has further delegated its power to the Central Government or any other agency. It has only made a query as to how the IBM was to go about for the purpose of calculating the sale price. It is a matter of record that the Study Group was appointed and various recommendations have been made by the Study Group. Merely because the Study Group is appointed and suggestions are made by the Study Group, it cannot be said that the Central Government had delegated its authority to the Study Group. It has to be noted that the Study Group consisted of experts from the IBM as well as from the Industry and the said recommendations have been made by consensus of all the stake holders of the iron ore industry. The said letter, therefore, in our view, cannot be treated as an instance of subdelegation by the delegate. Reliance has been placed on the observations made by H.W.R Wade & C.F. Forsyth in their authoritative treaties on Administrative Law (Ninth Edition) and the judgment of the Apex Court in State of U.P and Others vs. Maharaja Dharmander Prasad Singh and Others (1989) 2 SCC 505 ). Reliance has been placed on the observations made by H.W.R Wade & C.F. Forsyth in their authoritative treaties on Administrative Law (Ninth Edition) and the judgment of the Apex Court in State of U.P and Others vs. Maharaja Dharmander Prasad Singh and Others (1989) 2 SCC 505 ). In our view the said observations by the said authors and the ratio of the said judgment of the Apex Court in Maharaja Dharmander Prasad Singh (supra) would not be applicable to the peculiar facts of the present case. Therefore, it cannot be said that the said letter is in the form of directive and is ultra vires to the proviso to sub-section (3) of Section 9 of MMDR Act. 39. The next question which falls for consideration is : whether the order dated 16/6/2010 issued by the Captain of Ports is illegal, null and void. 40. Mr. Sonak, the learned Counsel appearing on behalf of the Petitioners has submitted that the said order does not make any reference to the provisions of law under which the same can be issued. Secondly, it is contended that Captain of Ports is a statutory authority in terms of India Ports Act, 1908 and Goa, Diu and Daman Port Rules. It is submitted that Captain of Ports has to act within the four corners of the legislations. It is further submitted that under the provisions of Indian Tax Act, 1908, provisions have been made regarding the circumstances in which “Port Clearance” may be issued. It is submitted that none of the provisions of the Port Act or the Rules made thereunder provide that “Port Clearance” cannot be issued where a party has not produced NOC from the Directorate of Mines & Geology. Further, it is submitted that Captain of Ports, by means of an executive order neither has any right nor authority to introduce the aforesaid requirement as precondition for issuance of the Port Clearance. It is submitted that the Captain of Ports vide executive instruction has virtually introduced one another condition for issuance of Port Clearance. 41. It is submitted in the affidavit-in-reply filed by Respondent No.3 that the requirement of payment of royalty and production of No Objection Certificate before the Captain of Ports is necessary in public interest in order to curb the illegal mining. 41. It is submitted in the affidavit-in-reply filed by Respondent No.3 that the requirement of payment of royalty and production of No Objection Certificate before the Captain of Ports is necessary in public interest in order to curb the illegal mining. It is stated in reply that the order had been issued pursuant to the decision of the State Government in order to curb illegal mining. It is further contended that in terms of MMDR Act, the State Government is fully competent to legislate in respect of any matter including transportation of ore. 42. The submissions made by the learned Counsel appearing on behalf of the Petitioners, in our view, is without any substance. Under the provisions of MMDR Act, State Government has every power and is fully competent to legislate in respect of any matter including transportation of ore. It cannot be said that the said order dated 16/6/2010 is beyond the competence of the State Government. By the said order dated 16/06/2010 issued by Captain of Ports, Panaji, Goa, a direction has been issued to all exporters/shippers to obtain from the Directorate of Mines and Geology an NOC to the effect that royalty stands paid on the quantity to be exported and/or indicated on Bill of Lading and the same was directed to be submitted to the Captain of Ports Department, prior to sailing of the vessels and before grant of outward clearance to vessels. 43. Under sections 38, 41, 42 and 43 contained in Chapter IV of Goa, Daman and Diu Port Rules, 1983, the Captain of Ports has to grant outward clearance to vessels upon compliance of various conditions contained in the said Rules. The Government has right to safeguard the revenue as well as prevent unregulated exploitation of natural resources and, accordingly, to prevent illegal mining and transportation of such illegally obtained iron ore and in order to ensure that there is no evasion of payment of royalty, it has given directions to the Captain of Ports and accordingly the Captain of Ports has given intimation to all the exporters/Shippers. There is no merit therefore in the said submissions made by the learned Counsel for the Petitioners. 44. In the result, the aforesaid questions are answered accordingly as under:- Questions Answers (1) Whether the Notification issued by the Central Government dated 13/8/2009 is ultra vires Section 9(3) of the MMDR Act? There is no merit therefore in the said submissions made by the learned Counsel for the Petitioners. 44. In the result, the aforesaid questions are answered accordingly as under:- Questions Answers (1) Whether the Notification issued by the Central Government dated 13/8/2009 is ultra vires Section 9(3) of the MMDR Act? No. (2) Whether the amended Rule 64D is ultra vires of sub-section (3) of Section 9 of the MMDR Act? No. (3) Whether the directive dated 10/12/2009 is ultra vires of the provisions of Section 9(3) of the MMDR Act? No. (4) Whether the Order dated 16/6/2010 issued by the Captain of Ports is illegal and invalid? No. 45. All these Writ Petitions are dismissed and disposed of. In view of dismissal of all these Writ Petitions, Civil Application Nos.220/10, Misc. Civil Application No.939/2010 and Civil Application No.164/2011 taken out in Writ Petition No. 735 of 2010 do not survive and the same are dismissed accordingly and disposed of. 46. At this stage, the learned Counsel appearing on behalf of the Petitioners have submitted that interim stay which was granted by this Court may be continued in order to enable them to challenge this judgment in the Apex Court. Interim stay is continued for a period of twelve weeks.