JUDGMENT : D.N. Patel, J I.A. Nos.6596/2015, 6627/2015, 6629/2015, 2075/2016, 2077/2016, 2139/2016, 2176/2016, 2178/2016, 2180/2016, 2182/2016, 2196/2016, 2199/2016, 2201/2016, 2203/2016, 2207/2016, 2232/2016 and 2233/2016 1. These interlocutory applications under Section 5 of the Limitation Act have been filed by the appellants for condonation of delay in preferring the instant appeals. 2. Having heard learned counsel and looking to the reasons stated in the interlocutory applications, there are reasonable reasons for condoning the delay in preferring the appeals. 3. Accordingly, aforesaid Interlocutory Applications are allowed and delay in filing the respective appeals is condoned. L.P.A. No.705 of 2015 & other allied cases 4. These aforesaid Letters Patent Appeals are arising out of the judgment delivered by learned Single Judge in W.P. (C) No.4737 of 2014 and other allied matters decided by a common judgment dated 25th March, 2015, whereby the petitions were allowed and it was held by the learned Single Judge that ordinary earth is not covered by Entry 5 of the notification issued by the State of Jharkhand dated 27th December, 2010 (Annexure 6 to the memo of appeals). It has been further held by learned Single Judge that no charge have been prescribed by the State of Jharkhand for the mines and mineral – ordinary earth and, hence, has not prescribed the rates & charge for the mineral mines “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and it has also been held by the learned Single Judge that the State is hereby prohibited from recovering royalty from “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”. Being dissatisfied with the said judgment delivered by learned Single Judge in W.P. (C) No.4737 of 2014 and other allied matters vide judgment dated 25th March, 2015, these Letters Patent Appeals have been preferred by the State of Jharkhand (original respondents). 5. FACTUAL MATRIX By the erstwhile State of Bihar, a notification was issued on 28th September, 1994 (Annexure 10) under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (herein after referred to as 'the Act, 1957' for the sake of brevity) prescribing the rate of royalty and as per Entry 3 thereof, ordinary clay which is used for manufacturing Raniganj tiles and commercial use, the rate of royalty was fixed at Rs.15/per cubic meter. A notification was issued by the Central Government, Ministry of Mines dated 03.02.2000 (Annexure 4) under Section 3(c) of the Act, 1957 declaring “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” to be as 'minor mineral'. The State of Jharkhand has issued a notification dated 2nd November, 2004 under Section 15 of the Act, 1957 amending the earlier notification dated 26th July, 2004. This notification was made effective from 28th September, 1994 prescribing the rate of royalty for mines and mineral and looking to Entry 5 of the notification dated 02.11.2004, ordinary clay used for manufacturing of Raniganj Tiles and commercial use, the new rate has been prescribed at Rs.15/per cubic meter. A further notification has been published by the State of Jharkhand dated 27th December, 2010 (Annexure 6) issued under Section 15 of the Act, 1957 and now the rate of royalty has been fixed at Rs.24/per cubic meter for ordinary clay/clay used for manufacturing of Raniganj Tiles and commercial use. As per Clause 5 and as per Clause 19, “all other mines minerals not herein before specified” for this entry 10% of sale price on ad valorem basis is prescribed as the rate of royalty. The respondents in all the aforesaid Letters Patent Appeals, who are original petitioners in the writ petitions before the learned Single Judge, were using “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” . The railway authorities have deducted royalty at the rate of Rs.24 per cubic meter under Entry 5 of the notification of the State of Jharkhand dated 27th December, 2010 (Annexure-6). The railway authorities have deducted royalty at the rate of Rs.24 per cubic meter under Entry 5 of the notification of the State of Jharkhand dated 27th December, 2010 (Annexure-6). Being aggrieved and feeling dissatisfied by this action of the original respondents, the writ petitions were preferred by the contractors mainly on the ground that ordinary earth, though is a 'minor mineral' as per Central Government notification dated 3rd February, 2000 issued by the Ministry of Mines (Annexure-4), no rate of royalty has ever been prescribed by the State of Jharkhand by issuing notification under Section 15 of the Act, 1957 for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and the deductions made by the Railway authorities of the royalty treating the earth as ordinary clay, is absolutely against the provisions of the Act, 1957 and also violative of the rules made thereunder and is also violative of the notification issued by the competent authorities. The learned Single Judge allowed the writ petitions and, hence, original respondent-State of Jharkhand has preferred these Letters Patent Appeals. 6. ARGUMENT CANVASSED BY THE COUNSEL FOR THE STATE OF JHARKHAND: Additional Advocate General of the State submitted that looking to the notification issued by the Central Government, Ministry of Mines dated 03.02.2000 (Annexure-4) “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” is already declared as a 'minor mineral' under Section 3(e) of the Act, 1957 and the original petitioners are using huge quantity of ordinary earth for the said purposes and, hence, they are liable to make payment of royalty to the State of Jharkhand. Additional Advocate General of the State has relied upon the notification issued initially by the erstwhile State of Bihar dated 28th September, 1994 (Annexure-10), Clause 3 thereof, which was later on modified by the State of Jharkhand's notification dated 2nd November, 2004 (Annexure-6) to be read with the notification issued by the State of Jharkhand dated 27th December, 2010 (Annexure-6). It is submitted by the Additional Advocate General of the State that if the ordinary clay is used for commercial purposes as per State of Jharkhand's notification dated 27th December, 2010, the respondents (original petitioners) are liable to make payment of royalty at the rate of Rs.24 per cubic meter of ordinary clay as per Entry 5 of the aforesaid notification. The use of ordinary clay for railway purposes is a commercial use. The respondents are not engaged in any philanthropic or charitable activity. They are earning from the commercial activities undertaken by them in a contract between the Railways and the respondents. Alternatively, it is submitted by the Additional Advocate General of the State that there is also one more clause viz., Entry 19 which is residuary clause for which also, there is a prescribed rate of royalty at the rate of 10% of the sale price on ad valorem basis. Thus, once ordinary earth is already notified by the Central Government, Ministry of Mines, vide their notification dated 3rd February, 2000 as 'minor mineral' in exercise of the powers conferred under Section 3(e) of the Act, 1957, the commercial user of the “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” is liable to make payment of royalty, in view of the notification dated 27th December, 2010 issued by the State of Jharkhand under Section 15 of the Act, 1957. This aspect of the matter has not been properly appreciated by the learned Single Judge and, hence, the judgment and order delivered by the learned Single Judge dated 25th March, 2015 in W.P.(C) No. 4737 of 2014 and other allied matters for which these Letters Patent Appeals have been preferred, deserve to be quashed and set aside. The residuary clause has been completely lost sight by the learned Single Judge which is Entry 19 of the very same notification dated 27th December, 2010 and, thus, even if the respondents (original petitioners) are not liable to make payment of royalty under Entry 5 of the said notification, they are covered by the residuary Entry 19 thereof. This aspect of the matter has also not been properly appreciated by the learned Single Judge. In fact, there is nothing like royalty at the rate of 10% for the minor minerals. This aspect of the matter has also not been properly appreciated by the learned Single Judge. In fact, there is nothing like royalty at the rate of 10% for the minor minerals. If any mineral is declared as a 'minor mineral' by the Central Government in exercise of powers conferred upon Central Government under Section 3(e) of the Act, 1957, all such minor minerals, which are not covered under Entry 1 to 18 of the notification dated 27th December, 2010 issued by the State of Jharkhand, are covered under Clause 19 thereof and for all such types of minor minerals which are not covered in Entry 1 to 18, are liable for payment at the rate of 10% of the sale price on ad valorem basis. This aspect of the matter has also not been properly appreciated by the learned Single Judge and, hence, the judgment and order delivered by the learned Single Judge deserves to be quashed and set aside. 7. ARGUMENT CANVASSED BY THE RESPONDENTS (ORIGINAL PETITIONERS): Learned counsel appearing for the respondents (original petitioners) mainly submitted that it is true that “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” have been declared as a 'minor mineral' by the Central Government in exercise of the powers under Section 3(e) of the Act, 1957, but, no rate of royalty has ever been prescribed by the State of Jharkhand by notification under Section 15 of the Act, 1957 for its “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”. This aspect of the matter has been properly appreciated by the learned Single Judge. It is further submitted by the learned counsel for the respondents (original petitioners) that there is a vast difference between 'ordinary clay' and 'ordinary earth'. Ordinary clay is a refined ordinary earth. Ordinary earth can be ordinary clay, but, ordinary clay may not be always ordinary earth and, therefore, if the royalty prescribed for the ordinary clay for Raniganj Tiles and commercial use, will not cover the use of ordinary earth by the said Entry. For ordinary earth, separate notification under Section 15 of the Act, 1957 ought to have been issued by the State of Jharkhand. For ordinary earth, separate notification under Section 15 of the Act, 1957 ought to have been issued by the State of Jharkhand. This aspect of the matter has been properly appreciated by the learned Single Judge and thereby rightly the learned Single Judge has held that the State cannot recover royalty on usage of the ordinary earth, even for commercial purposes. Learned counsel appearing for the respondents (original petitioners) further submitted that this issue has already been decided by the Hon'ble Patna High Court in the case of Hindustan Steel Works Construction Ltd Vs State of Bihar & Ors reported in 2007(2) PLJR 849 especially from paragraph 18 onwards and at length the difference between 'ordinary clay' and 'ordinary earth' has been pointed out. It has been held by the Hon'ble Patna High Court that for usage of the ordinary earth, royalty cannot be charged, which could have been charged for the usage of the ordinary clay. Against the said judgment, the State of Bihar has preferred S.L.P. (Civil) No. 16330-16333 of 2007 before the Hon'ble Supreme Court, which was dismissed by the an dated 17th September, 2007. Thus, in absence of any notification issued by the State of Jharkhand prescribing the rate of royalty for the usage of “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, the State of Jharkhand cannot charge any royalty from the respondents (original petitioners) and, hence, these Letters Patent Appeals may not be entertained by this Court. 8. REASONS: Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we hereby quash and set aside the judgment and order delivered by the learned Single Judge in W.P.(C) No.4737 of 2014 with in W.P.(C).No.1596 of 2013 with W.P.(C)No.1602 of 2013 with W.P.(C)No.1603 of 2013 with W.P.(C) No.1790 of 2013 with W.P. (C) No.1795 of 2013 with W.P.(C) No.1860 of 2013 with W.P.(C) No.4566 of 2013 with W.P.(C) No.4569 of 2013 with W.P.(C) No.2117 of 2014 with W.P.(C) No.2127 of 2014 with W.P.(C) No.2138 of 2014 with W.P.(C) No.2658 of 2014 with W.P.(C) No.2687 of 2014 with W.P.(C) No.5244 of 2014 with W.P.(C) No.395 of 2015 with W.P.(C) No.1096 of 2015 all dated th March, 2015 mainly for the following facts and reasons: (i) Learned counsels appearing for both the sides have read and reread the following provisions VIZ. Section 3(e) & Section 15 of the Act, 1957 during the course of arguments, which are referred herein below for the ready reference: “3(e) “minor minerals” means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral” “15. Power of State Governments to make rules in respect of minor minerals.-(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of (query leases, mining leases or other mineral concessions) in respect of minor minerals and for purposes connected herewith. [(1-A) ............................................. (a)............................................. (b)........................................... (c).......................................... (d)......................................... (e)........................................ (f)........................................ (g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable; (h) ........................................ (i) ........................................ (j) ........................................ (k) ........................................ (l) ........................................ (m) ........................................ (n) ........................................ (o) ........................................]” (emphasis supplied) (ii) The Central Government, Ministry of Mines in exercise of the powers under Section 3(e) of the Act, 1957 has issued a notification dated 3rd February, 2000 declaring “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” to be a 'minor mineral' in addition to the minerals already declared as 'minor minerals' (Annexure-4 to the memo of these Letters Patent Appeals). (iii) Thus, for this minor mineral, now the State Governments are at liberty to prescribe the rate of royalty to be published in the notification under Section 15 of the Act, 1957. (iv) The State of Bihar has prescribed such rates of royalty for ordinary clay used for manufacturing Raniganj Tiles and commercial use as per Annexure-10 to the memo of these Letters Patent Appeals. (v) Upon bifurcation of the State of Jharkhand, notification was issued by the State of Jharkhand dated 2nd November, 2004 altering the rates of royalty with some modifications in the notification dated 28th September, 1994, because earlier notification of the erstwhile State of Bihar was dated 28th September, 1994. (vi) Later on, one more notification was issued for modification of the earlier notification by the State of Jharkhand which is dated th December, 2010 (Annexure-6). Entry 5 and Entry 19 of the notification read as under: 5. Ordinary clay-clay used for manufacturing of Raniganj tiles and commercial use 24 per cubic meter 19. (vi) Later on, one more notification was issued for modification of the earlier notification by the State of Jharkhand which is dated th December, 2010 (Annexure-6). Entry 5 and Entry 19 of the notification read as under: 5. Ordinary clay-clay used for manufacturing of Raniganj tiles and commercial use 24 per cubic meter 19. All other minor minerals not here in before specified 10% of sale price on ad valorem basis (vii) It appears that under Entry 5, Railway authorities have deducted royalty @ Rs.24 from the running bills of the respondents (original petitioners). In fact, the railway authorities have deducted the amount at double the rate of royalty. Be that as it may. The fact remains that Clause 5 of the notification of the State of Jharkhand dated 27th December, 2010 was made operative and the respondents were aggrieved by this and, hence, they had preferred writ petitions, which were allowed and, therefore, these Letters Patent Appeals have been preferred by the original respondents i.e. the State of Jharkhand. (viii) Much has been argued about difference between “ordinary clay' and 'ordinary earth”. 'Ordinary clay' is a refined ordinary earth, as submitted by learned counsel for the respondents. Ordinary earth can be ordinary clay, but, it is not true that ordinary clay is always ordinary earth. Looking to the decision rendered by the Hon'ble Patna High Court in the case of Hindustan Steel Works Construction Ltd Vs. State of Bihar & Ors reported in 2007(2) PLJR 849 , it has been held in paragraphs 19 to 24 as under: “19. The Central Government in exercise of the powers conferred by clause (3) of Section 3 of the Act issued notification No.GSR 1995(E) dated 3.2.2000 declaring the “ordinary earth used for filling or levelling purposes in construction of embankment, road, railways, building” to be a minor mineral in addition to the minerals already declared as minor minerals. 20. The notification, dated 3.2.2000 leaves no room for doubt that the expression “ordinary clay” used in Section 3(e) of the Act did not cover “ordinary earth used for filling or levelling purposes …..” and the latter came to be included in the list of minor minerals with effect from 3.2.2000, the date of issuance of the notification. It remained now for the State Govt. to make rules for fixing and collection of royalty etc on “ordinary clay used for filling and levelling purposes...”. It remained now for the State Govt. to make rules for fixing and collection of royalty etc on “ordinary clay used for filling and levelling purposes...”. 21. After the Central Govt. notification, dated 3.2.2000, the State Govt. in exercise of its powers under Section 15 of the Act, issued another notification, dated 23.3.2001 (published in the official gazette of 24.3.2001). This notification too, like the previous one, was both in Hindi and in English. Entry under Schedule II of the notification in Hindi reads as follows: “Sadharan Mitti, Raniganj Khapra Bananain Main Wyawharit Mitti Ewam Vyaparik Karyon Par—Rs.15/- per cubic metre”. the same Entry in the English version of the notification reads as follows: “Ordinary clay/clay used for manufacturing of Raniganj tiles and commercial use—Rs.15/- per cubic metre”. Thus, the only difference with the previous notification, dated 28.9.1994 was that clause (ii) of the Entry reading in Hindi as: “Anya Pariyojno Main Wyawaharit Mitti—Koi Swamitya Nahin” And in English “Clay used for other purpose—No royalty”. 22. It is, thus, evident that the 2001 notification or the State Govt. made no attempt to bring within the levy of royalty “ordinary earth used for filling and levelling purposes” though it was declared as minor mineral by the Central Govt. a year ago. 23. Finally the State Govt. issued yet another notification, dated 18.4.2006 (published in the official gazette of 19.4.2006). Part 5 of the notification deals with the Bihar Minor Mineral Concession Rules, 1972 and Entry 5 under Schedule II of Part 5 of the notification reads as follows: - “Sadharan Mitti Jis Ka Upyog Raniganj Khapra Vyaparik Karyon Jo Baandhi, Sadak, railway, Bhavan Aadi Ke Nirman Main Bhamain Ya Samtal Karne Ke uddesh Se Kiya Jata Hai--Rs.15/- per cubic meter.” 24. The sequence of notifications as seen above, leaves no room for doubt that “ordinary earth used for filling or levelling purposes for....” came to be declared as minor mineral with effect from 3.2.2000 and it became subject to levy of royalty by the State Govt. with effect from 19.4.2006. Any demand of royalty from the petitioners from a date prior to 18.4.2006 would, therefore, be illegal and unsustainable. The petitioners would be obliged to pay royalty on “ordinary earth used for filling or levelling purposes” in the execution of their demands against the petitioners for the period prior to 18.4.2006. with effect from 19.4.2006. Any demand of royalty from the petitioners from a date prior to 18.4.2006 would, therefore, be illegal and unsustainable. The petitioners would be obliged to pay royalty on “ordinary earth used for filling or levelling purposes” in the execution of their demands against the petitioners for the period prior to 18.4.2006. All the writ petitions are accordingly disposed of.” (emphasis supplied) (ix) Special Leave Petition being S.L.P. (Civil) No. 16330-16333 of 2007 preferred against this decision, has also been dismissed vide order dated 27th September, 2007. In view of the aforesaid decision, there is a vast difference between ordinary earth and ordinary clay. We are in full agreement with this decision more particularly when a notification has been issued by the Central Government dated 3rd February, 2000 (Annexure-4 to the memo of the Letters Patent Appeals) notifying that “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” is a minor mineral. Thus, ordinary earth is also declared as minor mineral. Ordinary clay is already mentioned in Section 3(e) itself. Thus, “ordinary clay” and “ordinary earth” have been separately mentioned as a minor mineral, for which the State of Jharkhand could have prescribed separate rates of royalty by issuing notification under Section 15 of the Act, 1957, but, there is no specific rate of royalty for the usage of “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and, hence, no error has been committed by the learned Single Judge in holding that the State of Jharkhand cannot recover the royalty under Entry no. 5 of the notification of the State of Jharkhand dated 27th December, 2010. (x) Looking to Entry no. 19 of the very same notification dated 27th December, 2010 which is a residuary entry, which takes in its sweep, all other minor minerals not herein before specified. As per Entry no. 19, the minor mineral viz. “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” is covered by this Entry no. 19 of the notification dated 27th December, 2010 issued by the State of Jharkhand in exercise of the powers under Section 15 of the Act, 1957. The rate of royalty prescribed is 10% of sale price on ad valorem basis. This residuary Clause is lost sight of while deciding the writ petitions. 19 of the notification dated 27th December, 2010 issued by the State of Jharkhand in exercise of the powers under Section 15 of the Act, 1957. The rate of royalty prescribed is 10% of sale price on ad valorem basis. This residuary Clause is lost sight of while deciding the writ petitions. Thus, even though, there is no specific rate of royalty prescribed by the “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building”, the same is already prescribed as minor mineral by the Central Government in its notification issued under Section 3(e) of the Act, 1957 and, hence, it is covered by Entry no. 19 of the State of Jharkhand's notification dated 27th December, 2010 and, hence, the respondents are liable to make payment of royalty, as per Entry no. 19 of the State of Jharkhand's notification dated 27th December, 2010 (Annexure-6) issued under Section 15 of the Act, 1957. (xi) It appears that the State of Jharkhand has not issued any notification for specific rate of royalty for “ordinary earth used for filling or leveling purposes in construction of embankment, roads, railways, building” and, therefore, the use of the earth for the railway purposes which is also declared as minor mineral is covered by the residuary Entry no. 19 of the notification dated 27th December, 2010. 9. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, we hereby quash and set aside the judgment and order delivered by the learned Single Judge in W.P.(C) No.4737 of 2014 with in W.P.(C). No.1596 of 2013 with W.P. (C) No.1602 of 2013 with W.P. (C) No.1603 of 2013 with W.P. (C) No.1790 of 2013 with W.P. (C) No.1795 of 2013 with W.P. (C) No.1860 of 2013 with W.P. (C) No.4566 of 2013 with W.P. (C) No.4569 of 2013 with W.P. (C) No.2117 of 2014 with W.P. (C) No.2127 of 2014 with W.P. (C) No.2138 of 2014 with W.P. (C) No.2658 of 2014 with W.P. (C) No.2687 of 2014 with W.P. (C) No.5244 of 2014 with W.P. (C) No.395 of 2015 with W.P. (C) No.1096 of 2015 all dated 25th March, 2015 and we hold that the respondents are liable to make the payment of royalty as per Entry no. 19 of the notification issued by the State of Jharkhand dated 27th December, 2010 issued in exercise of the powers conferred by the State of Jharkhand under Section 15 of the Act, 1957 and not under Entry no. 5 of the said notification and the respondent-railway authorities and the appellant-State authorities are at liberty to recover the amount of royalty under Entry no. 19 of the notification dated 27th December, 2010 (Annexure-6) 10. Accordingly, all the Letters Patent Appeals are partly allowed and disposed of. 11. In view of the final order passed in the Letters Patent Appeals, I.A. Nos.6597/2015, 6628/2015, 6630/2015, 2076/2016, 2078/2016, 2138/2016, 2177/2016, 2179/2016, 2181/2016, 2183/2016, 2197/2016, 2200/2016, 2202/2016, 2204/2016, 2206/2016, 2231/2016 and 2234/2016 stand disposed of. Appeals partly allowed.