STATE OF TAMIL NADU versus HINDU STONE ETC.

STATE OF TAMIL NADU

HIND STONE ETC.

February 5, 1981

[R. S. PATHAK AND 0. CHINNAPPA REDDY, JJ.J

Mines and Minerals (Regulation and Development) Act, 1951-Section 15-Rule 8-C of Tamil Nadu Minor Mineral Concession Rules, 1959-Scope of-Rule, if ultra vires the rule making power of the State Government-Whether l'iolative of Articles 301 and 303 of the Constitution.

lnJerpretation-"Regulation" whether includes ''prohibition".

The Mines and Minerals (Regulation & Development) Act, 1957 (Central Act) 'vas enacted in the public interest to enable the Union to take under its contro1 the regulation of mines and the development of minerals. Exercising its power u'.lder this Act, the Central Government declared by notification that b?ack granite was minor mineral.

Exercising power vested in it by section 15 of the Act, the State Government made the Tamil Nadu Minor Mineral Concession Rules, 1959. Rule 8 of the Rules pre.scribes the procedure for lease of quarries to private persons. Bv rule 8·C, introduced in 1977. leases for quarrying black granite in favour of private persons were banned. Sub·rule (2) of this rule enacts that the Statt" Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation v,,·holly O"Wned by the State Government.

Several applications for the grant of fresh leases as well as for the rene\Val of leases for quarrying black granite belonging to the State Government were submitted to the State Government. sOme prior to the introduction of rule 8C and some after the rule ca·me into force. The State Government considered all the applications and rejected all of them in view of nlle SC.

The respondents filed writ petition questioning the vircs of Rule S·C on various grounds. The High Court stn1ck do\vn Rule 8·C on the ground fhat it exceeded the rule making power given to the State Government and held that it was not open to the appellant Government to keep the applic~1tions pending for long time and then to dispose them of on the basis of n rule \vhich had come into force later. As result all the aprlications were disposed of without reference to rule 8·C.

The appellant contended that : (T) The approach of the High Court was vitiated by its failure to notice the crucial circumstance thnt the minerals belonged to the Government, (TI) The respondents had no vested or indefe<lsible right to obtain lease or :i renewal to Quarry the minerals, (TIT) There \Vere good reasons for banning the grant of lease to quarry black granite to private parties and (IV) The Government could not be compelled to grant leases \~1hich would result in the destn1ction of the mineral resources of th~ or;:nntry.

On behalf of the respondent it was submitted that (l) the ouestion of ownership of the minerals was irrelevant, (TI) It was not open to the appe11ant

to exercise its subordinate legislative function in manner to benefit itself as owner of the minerals, nor was it open to the appellant to create monopoly by such means, (Ill) There was violation of articles 301 and 303 of the Constitution, (IV) Rule 8-C had no application to renewals and (V) That in any event it would not have the effect Qf affecting applications made more than 60 days before it can1e into force.

Accepting the appeals, it was

l-lliLD ; llule 8-C was 111ade in bonafi<le exercise 0£ the rule making power of the Appellant Government and not in its misuse to advance its own self interest. Making rule which is perfectly in order is not to be considered n1isuse of the rule making power, if it advances the interest of State, which really 111eans the people of the State. Rivers, forests, minerals and as such other resojJrces constitute nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes duty to all succeeding generations to develop & conserve the natural resources qf the nation in th~ best possible way. It is in the interest of mankind. It is in the interest of the Nation. It is recognised by Parliament. Parliament bas declared that it is expedient in the public interest that the Union should take under its control the regulation of. mines and the development of minerals. [751C-D, 753G-H]

2. The Public interest which induced Parliament to make the declaration contained in S.2 of the Mines & Minerals (Regulation and Development) Act, i 957 has naturally to be the pnramount consideration in all matters concerning the regulation of Mines & Minerals. Parliament's Policy is clearly discernible froln the provisions of the Act. It is the conservation and the prudent an<l discriminating exploitation of minerals, with view to secure maximum benefit to the community. There are clear sign posts to lead and guide the subordinate legislating authority in the matter of the making of rules. [751G-H]

3. The ether proyisions of the Act, particularly sections 4A, 17 and 18, indicate that the rule making authority under S.15 has not exceeded its powers in banning leases for carrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government. To view such rule made by the Subordinate legislating body as rule made to benefit itself merely l)ecause the State Government happens to be the subordinate legislating body is, but, to take too narrow view of the functions of that body.

[751H, 752A-BJ

If. C. Naraya11appa & Ors. v. Stale of Mysore & Ors. [ 1960] 3 SCR 742 @ 745, 752-753 referred to.

5. 'Vbenever there is switch over from 'private sector' to 'public sector• it does not necessarily follow that change of policy requiring express legislative sanction is involved. It depends on the subject and the statute. But if decision is taken to ban private mining of single minor mineral for the purpose of conserving it, such ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy. The policy of the Act rem&ins the same and it is, the conservation and the prudent and discriminating exploitation of

[1981] 2 s.c.il.

minerals, with view to secure maximum benefit to the community, E.'Xploitation of minerals by the private and/ or the public sector is contemplated. If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of particular mineral and1 in consequence, the authority competent to make the subordinate iegislation makes rule banning private exploitation of such mineral, which was hitherto permitted. There is no chaJlSC of policy merely because that was previously permitted is no longer permitted. [756A-D] AJunicipal Corporation of the City of Toronto v. Virgo [1896] A.C 88, AtJorney General for Ontario v. Attorney General fol' the Dominion and the Di~tillers and Brewers Association, [1896] A.C. 348, State of Uttar Ptadcsh and Others v. Hindustan Alunzinium Corporation Ltd. and Ors., [19i9] 3 SCR 709, G. K. Krishnan etc. v. The State of Tamil Nadu ilnd .1i11r. t:tc. [1975] 2 SCR 71[15 ][@ ][721, ][Co1n1nonwealth of Australia ][v ][.. ]Bank of New South Wales [1950) A.C. 235 referred to.

6. The restrictions, freedom from which is guaranteed by Art. 301 would be such restrictions as directly and immediately restrict or impede the free How or movement of trade. The A~t and the rules properly made thereunder are, therefore, outside the purview of Art. 301. Even otherwise Art. 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of Art. 301. [757F-H, 758A-B]

7. The Mines and Minerals (Regulation and Development) Act is law enacted by Parliament and declared by Parliament to be expedient m the public interest. Rule 8-C has been made by the appellant Govt. by notification in the official Gazette, pursuant to the poWer conferred upon it by sec. 15 of the Act. statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the act and are to be judicially noticed for a·ll purposes of construction or obligation. [758B-G]

Atiabari Tea Co. Ltd. v. State of Assam & Ors. [1961] 1 SCR 809 The Automobile Transport Rajasthan Ltd., v. State of Rajasthan & Ors. [1963] 1 SCR 491 and State of U.P. & Ors. v. Babu Ram Upadhya [1961] 2 SCR 679, referred to. 8. Rule 9 makes it clear that renewal is not to be obtained automatically, for the mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral develop-ment and that the lease amount is reasonable in the circumstances of the case. These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of. course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. Therefore rule 8-C is attracted in considering applications for renewal of leases also. [759A-D]

9. While the applications should be dealt with within reasonable time, it cannot on that account be said that the right to have an application disposed

of in reasonable time clothes an applicant for lease with right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has vested right to the grant or rene\val of lease and none can claiin vested right to have an application for the grant or renewal of lease dealt with in particular way, by applying particular provisions. In the absence of any vested rights in any one, an application for lease has necessarily to be dealt with according to the rules in force on the date of the dJsposal of the application despite the fa~t_ that there is long delay since the making of the application. [759G-H, 760!.~

10. The language of Rule 8-C is clear that it can not have any application to lands in which the right to minerals belongs to the applicants themselves. In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec. III of the Tamil Nadu Minor Mineral concession Rules. Rule 8-C does not impose general ban on quarrying black granite but only imposes bar on the grant of leases for quarrying black grnnite. [760D-F]

·CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2602-2604 of 1980.

A\ppeals by special leave from the Judgment and Order dated 20-6-1980 of the Madras High Conrt in Writ Petition Nos. 4467 of 1977, 2933 and 4793 of 1978 .

Lal Narain Sinha Att. Genl. of India for the Appellant in CA 2602/80.

Soll l. Sorabjee for the Appellant in CA 2603/80.

R. Krishnamurthy Adv. Genl. for the appellant in CA 2604/80.

A. V. Rangam and K. Venkatawani for the Appellant in all the matters.

Y. S. Chitale (Dr.), Mrs. S. Ramachandran and Mukul Mudgal for Respondent Nos. 11 and 42.

P. Chidambaram and A. S. Nambiyar for the Respondents.

F. S. Nariman, A. V. Rangam and R. N. Sachthey for the inter-veners.

V. Srinivasan, A. Venkatarayana and P. N. Ramalingam for Res-pondent No. 45.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-Entry 23 of List II of the Seventh Schedule to the Constitution is, "Regulation of mines and mineral R development subject to the proviJ;ions of List I with respect to regu-lation and development under the control .of the Union". Entry 54

of List I of the Seventh Schedule is "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest". Thus while 'regulation of mines and mineral development' is ordinarily subject for State legislation. Parliament may, by law, declare the extent to which control of such regulation and development by the Union is expedient in the public interest, and, to that extent, it becomes subject for Parliamentary legislation. Parliament has accordingly enacted the Mines and Minerals (Regulation and Development) Act, 1957. By S. 2 of the Act it is declared that it is expedient in the public interest that! the Union should take under its control the regulation of mines and the development of minerals to the extent thereafter provided. It is now common ground between the parties that as result of the declara-tion made by Parliament, by S. 2 of the Act, the State legislatures are denuded of the whole of their legislative power with resp_ect to regu-lation of mines and mineral development and that the entire legislative . field has been taken over by Parliament. That this is the true position in law is clear from the pronouncements of this Court in The Hingir· Rampur Coal Co. Ltd. & Ors. v. The State of Orissa & Ors.([1]) State of Orissa v. M.A., Tulloch & Co.([2]) and Baijnath Kedia v. State of Bihar & Ors.(') S. 3 of the Mines and Minerals (Regulation and Development) Act, 1957, defines various expressions occurring in the Act. S. 3 (a) defines 'minor minerals' and it includes any mineral dec-lared to be minor =era! by the Central Government by notifica · tion in the Official Gazette. 'Black granite' has been so notified by the Central Government as minor mineral. Section 4 to 9A are grouped under the heading 'General Restrictions on undertaking prospecting and mining operations'. These provisions as well as Sections 10 to 13 are made inapplicable to 'minor minerals' by S. 14. S. 4 prohibits all prospecting or mining qperations except under licence or lease granted under the Act and the rules made thereunder. S.4A(l) enables the State Government on request made by the Central Government in the interest of regulation of mines and mineral deve-ldpment to terminate mining lease pre-maturely and grant fresh mining lease in favour of Government Company or Corporation owned or controlled by Government. Perhaps because s.4A(l) is inapplicable to minor minerals because of the provisions of S.14, S.4A(2) has been expressly enacted making somewhat similar pro-vision, as in S.4A(l), in ~ of 'minor minerals' also. S.4A(2)

(I) [1961] 2 SCR 537 (2) (1964) 4 SCil 461. (3) [1970) 2 SCil 100.

Central

J enables the State Government, after consultation with the Central Government, if it is of opinion that it is expedient in the interest of .) regulation of mines and mineral development so to do, to prematurely terminate mining lease in respect of any minor mineral and grant fresh lease in respect of such mineral in favour of Government Company or Corporation owned or controlled by Government. S.5 imposes certain restrictions on the grant of prospecting licences and mining leases. S.6 prescribes the maximum area for which pros-pecting licence or mining lease may be granted. S. 7 prescribes the period for which prospecting licences may be granted or renewed. S.8 prescribes the period for which mining leases may be granted or , renewed. S.9 provides for the payment of royalty and S.9A for the payment of dead rent. Sections 10, 11 and 12 constitute group of sections under the title 'Procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government'. S.10 provides for making applications for prOSiP<:cting licences or mining leases in respect of any land in which the minerals vest in the Government. S.11 provides for certain preferential rights in favour of certain persons in the matter of grant of mining leases. S. 12 prescribes the Register of prospecting licences and mining leases to be maintained by the State Government. S.13 empowers the Central Government to make rules for regulating the grant of pros-pecting licences and mining leases. In particular we may mention that S.13(2) (a) empowers the Central Government to make rules providing for 'the persons by whom, and the manner in which, appli-cations for prospecting licences or mining leases in respect of J:oand in which the minerals vest in the Government may be made and the fees to be paid therefor". S.13(2) (f), we may add, empowers the Cen-tral Government to make rules providing for 'the procedure for obtain-ing prospecting licence or mining lease in respect of any J:oand in which the minerals vest in person other than the Government and the terms on which, and the conditions subject to which, such ~. licence or lease may be granted or renewed'. S. I 4 makes the pro--visions of Sections 4 to 13 inapplicable to minor minerals. S.15 empowers the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and purposes connected therewith. S.15(3) provides for the payment of royalty in respect of minor J minerals at the rate prescribed by the rules framed by the State Government. S.16 provides for the modification of mining leases \ granted before October 25, 1949. S.17 enables the Central Govern-ment, after consultation with the State Government to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease, in which event the Central

Government shall publish notification in the official Gazette giving the prescribed particulars. The Central Government may also declare .that no prospecting licence or mining lease shall be granted in respect pf any land specified in the notification. S. l S casts special duty on ( the Centra;I. Government to take all necessary steps for the conserva-tion and development of minerals in India. Sections 19 to 33 are various miscellaneous provisions with which we are not now concerned. Pursuant to the power vested in it under S.15 of the Mines and Minerals (Regulation and Development) Act, 1957, the Government of Tamil Nadu has made the Tamil Nadu Minor Mineral Concession 1 Rules, 1959. Section II of the rules consisting of rules 3 to 16is_ entitled "Government lands in which the minerals belong to the Government". Rule 8 prescribes the procedure for the kase of quarries to private persons. The ordinary procedure is to publish notice in the District Gazette inviting applications, thereafter to hold ~n auction and finally to grant lease to the highest bidder. Rule SA which was introduced by way of an amendment in 1972, provides for special procedure for the sanctioning of leases in favour of appli-cants who require the minerals for their existing industries or who have an industrial programme for the utilisation of the mineral in their own industry. Rule SB was introduced in 1975 making special provision for the grant of leases for quarrying b1'ack granite. The rule is as follows :

"S-B. Lease of quarries in respect of black granite to private persons (1) Notwithstanding anything to the contrary con-tained in rules 8 and SA, the authority competent to grant leases in respect of quarrying black granite shall be the State Government.

(2) An application for the grant of quarrying lease in respect of any land shall be made to the Collector of thf. District concerned in the prescribed form in triplicate and shall be accompanied by fee of Rs. 1001-. The Collector shall after scrutiny, forward the application along with his remarks to the Director of Industries & Commerce who shall techni-cally scrutinise the industrial programme given by the appli-cant and forward the application with his remarks to the Govetnment."

"(G. o. Ms. No. 993 Industries dt. 25-S-1975". Rnle 8-C was introduced by G. 0. Ms. No. 1312 Industries dated December 2, 1977. By this rule leases for qaurrying black granite

ln favour of private persons are banned. Leases can only be granted in favour of Corporation wholly owned by the State Government. It is the vires of this rule which was nnder challenge before the High Court and is also under challenge now. It will be useful to extract the same. It is as follows :

"8-C Lease of quarries in respect of black granite to Govern-ment Corporation, etc.

( 1) Notwithstanding anything to the contrary contained in these rules, on and from 7th December, 1977 no lease for quarrying black granite shall be granted to private persons.

(2) The State Government themselves may engage in quarrying blaek granite or gmnt leases for quarrying black granite in favour of any corporation wholly owned by the State Government.

Provided that in respect of any land belonging to any pri-vate person, the consent of such person shall be obtained for such quarrying or lease".

Rule 9 provides for renewal of leases and it is in the following terms :

"9. Renewal of lease.-{1) The Collector may on appli-cation renew for further period not exceeding the period for which the lease was originally granted in each case if he is satisfied that-

(i) such renewal is in the interests of mineral develop-ment, and

(ii) the lease amo)lnt is reasonable in the circumstances of the case.

(2) Every application for renewal shall be made to Col-lector, sixty days prior to the date of expiry of the lease :

Provided that lease, the period of which exceeds ten years shall not be renewed except with the sanction of the Director of Industries and Commerce".

proviso was added to rule 9(2) in 1975 'Ind it said :

"provided also that the renewal for quarrying black granite shall be made by the Government".

~~veral persons who held leases for quarrying black granite belonging to the State Government and whose leases were about to expire, applied to the Government of Tamil Nadu for renewal of their leases. In some of the cases applications were made long prior

to the date of G. 0. Ms. No. 1312 by which Rule SC was introduced. Some applicatious were made after Rule S came into force. There were also some applications for the grant of fresh leases for quarrying ( black granite. All the applications were dealt with after Rule S came into force a.nd all of them were rejected in view of Rule SC. Several Writ Petitions were filed in the High Court questioning the vires of Rule SC on various grounds. Apart from canvassing the vires of Rule SC, it was contended that Rule SC did not aipply to grant of renewals of lease at all. It was also argued that in any event, in those cases in which the applications for renewal bad been made prior to the coming into force of Rule SC, their applications .......should have been dealt with without reference to Rule SC. The---· -..... Madras High Court while not accepting some of the contentions raised on behalf of the aplicants, struck down Rule SC on the ground that it exceeded the rule making power given to the State Government under S.15 which, it was said, was only to regulate and not to pro-hibit the grant of mining leases. As consequence all the applica-tions were directed to be di!\JlOSed of without reference to Rule SC. It was also observed that even if Rule SC was valid it applied only to the grant of fresh leases and not to renewals. It was also held that it was not open to the Government to keep the applications • pending for long time and then to dispose them of on the basis of rule which had come into force later. The State Government has come in appeal against the judgment of the Madras High Court while the respondent-applicants have tried to sustain the judgment of the Madras High Court on grounds which were decided against them by the Madras High Court.

The---· -.....

The learned Attorney General who appeared for the Government of Tamil Nadu submitted that the approach of the High Court was vitiated by its failure to notice the crndal circumstance that the mine-rals belonged to the Government and the applicants had no vested or · indefeasihle right to obtain lease or renewal to quarry the mine-. rals. There were good reasons for banning the grant of leases to quarry black granite to private parties and in the light of those reasons the Government could not be compelled to grant leases which would result in the destruction of the mineral resources of the country. Shri K. K. Venugopal, learned counsel who led the argument for the respon-dents submitted that the question of o_wnership of the minerals was irre-levant. In making the rules the State Government was acting as de-le~te and not as the owner of the minerals. He submitted that it was not open to the State Government to exercise its subordinate legislative function in manner to benefit itself as owner of the minerals, nor was it open to the State Government to create monopoly by such means.

Accordin~ to Shri Venugopal creation of monopoly in the State was essentially legislative function and was incapable of delegation. It was claimed that there was violation of Articles 301 and 303 of the Constitution. It was further claimed that S. 15 of the Mines and Minerals (Regulation and Development) Act 1957, enabled the State Government to make rules to regulate the grant of leases and not to prohibit them. In any case it was said that Rule 8G had no applica-tion to renewals and tbat in any event it would not have the effect of affecting applications made more than 60 days befc:·o it came into force.

Rivers, Forests, Minerals and such other resources constitute nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the Nation. It is recognised by Parliament. Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals. It has enacted the Mines and Minerals (Regulation and Development) Act, 1957. We have already referred to its salient provisions. S. 18, we have noticed, casts spe-cial duty on the Central Government to take necessary steps for the conservation and development of minerals in India. S. 17 authorises the Central Government itself to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease. S. 4A empowers the State Government on the request of the Central Government, in the case of minerals other than minor mineral,, to prematurely terminate existing mining leases and grant fresh leases in favour of Government Company or Corporation owned or controlled by Government, if it is expedient in the interest of regulation of mines and mineral development to do so. In the case of minor minerals, the State Government is similarly empowered, after consultaticm with the Central Government. The public interest which induced Parliament to make the declaration contained in S. 2 of the Mines & Minerals (Regulation and Development) Act, 1957. has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals. Parliament's policy is clearly discernible from the provisions of the Act. It is the conservation and the prudent and discriminating exploitation of mine-rals, with view to secure maximum benefit to the community. There are clear sign posts to lead and guide the subordinate legislating autho-rity in the matter of the making of roles. Viewed in the light shed by the other provisions of the Act, particularly sections 4A, 17 and 18

it cannot be said that the rule making authority under S. 15 has ex-ceeded its powers in banning leases for quaiTying black granite in favcur of private parties and in stipulating that the State Govern-ment themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government. To view such rule made by the Subor-dinate legislating body as rule made to benefit itself merely because the State Government happens to be the subordinate legislatitng body, is, but, to take too narrow view of the functions of that body. The reasons that prompted the State Government to make Rule 8-C were explained at great length in the common counter affidavit filed on be-half of the State Government before the High Court. We find no good reason for not accepting the statements made in the counter affidavit. It was said there :"I submit that the leases for black granite are governed by the Tamil Nadu Minor Mineral Concession Rules 1959 under which ori14nally there was scope for auctioning of quarries of minor minerals. In amendment i'5ned in the G.O. dated 6-12-1972. under Rule 8-A it was indicated that the Collector may sanction leases in favour of applicants who are having an industrial programme to utilise the mine-rals in their own industry. This provision is applicable to all minerals including black granite.. However, it was found that there were several cases where lessees who ob-tained the black granite areas on lease by auction were not quarrying in systematic and planned manner taking into consideration the welfare and safety measures of the wor-kers as well as the conservation of minerals. Even after the introduction of the amendment under Rule 8-A in most cases, the industry set up was of flimsy nature more to circumvent the rule than to really introduce industry includ-ing mechanised cutting and polishing. The lessees were also interested only in obtaining the maximum profit in the shor-test period of time without taking into consideration the proper mining and development of the mineral. There was also considerable wastage of new materials due to wasteful mmmg. Therefore, -Government issued further amend-ment as Rule 8-B wherein the competent authority to grant leases in respect of the quarrying black granite was trans-ferred from the Collector to the State Govenunent level. They also prescribed standard form and an application fee to be paid with the application. The amendment states that l he Director of Industries and Commerce shall technically

scrutinise the industrial programme given by the applicant while forwarding the same to Government. At the same time, in the G.O. issued along with amendment, it was stated that if any of the State Government Organisations like Tamil Nadu Small Industries Corporation Limited, Tamil Nadu Small Industries Development Corporation Limited, famil Nadu Industrial Development Corporation Limited is inte-rested to obtain lease ior black granite in particular area, preference will be given to Government undertaking over other private entrepreneurs for granting the leases applied for by them. However, in spite of these amendments to re.-gulate the grant of mining lease, there were large number of lessees (exceeding 140), who were engaged in mining without proper technical guidance or safety measures etc. for the workers. These lessees made strong representation to the then Government in 19 7 6 expressing that though they had given assurance to set up industries to use the granites they were not able to do so far various reasons. They also represented that they should be allowed to export the raw blocks of black granites. Therefore, Government had issued a. Government Order dated 15-2-1977 relating to relaxation of the ban of export of raw blocks and provision for setting up polishing or finishing unit was not made pre-requisite. They have also stated that the terms and conditions for the existing losses would remain in force. However, on an exa-mination of the performance of the lessees over the pa~t several years, it h.as been found that excepting in very few cases, none of the lessees had set up proper industries or de-veloped systematic mining of the quarries. The exports continue to be mainly on the raw b:ack granite materials and not cut and polished slabs. large number of the leases were not operating ~ither due to speculation or lack of finance from the lessees. Therefore, Government decided that there should be no further grant of ]ease to private entrepreneurs for black granite. This was mentioned in G.0.Ms. No. 1312 Industries dated 2-12-1977.We are satisfied that Rule 8C was made in bonafide exercise of the rule making power of the State Government and not in its misuse to advance its own self-interest. We however guard ourselves against being understood that we h&ve accepted the position that making rnle which is perfectly in order to be considered misuse of the rule making power, if it advances the interest of State, which really means the people of the State.

One of the submissions on behalf of the respondents "'as that ~ monopoly was distinct legislative subject under entry 21 of List Ill of the Seventh Schedule to the Constitution and therefore monopoly, ~ even in favour of State Government can only be created by plenari and not subordinate legislation. Parliament not having chosen to exercise its plenary power it was not open to the subordinate legislat-B ing body to create monopoly by making rule. Our attention was invited to H. C. Narayanappa & Ors. v. Stare of Mysore & Ors.([1]) where it was held that the expression 'Commercial and industrial monopolies' in entry 21 of List Ill of the Seventh Schedule to the Constitution was not confined to legislation to control of monopolies · _ ....but was wide enough to include grant or creation of commercial or -..,.c industrial m,onopolics in favour of the State Government, also. We are unable to agree with Shri Venugopal's submission. The very decision cited by him furnishes the answer. The validity of scheme for nationalisation of certain routes made pursuant to the powers conferred by Chapter IV of the Motor Vehicles Act was under attack in that case. One of the grounds of attack was that "by Chapter IVA of the Motor Vehicles Act, 1939,

"Parliament had merely attempted to regulate the procedure for entry by the States into the business of motor transport in the State, and in the absence of legislation expressly under-tuken by the State of Mysore in that behalf, that State was incompetent to enter into the arena of motor transport busi-ness to the exclusion of private operators;"

Sustenance for the submission was sought to be drawn from the language of Art. 19 ( 6) (ii) which provides that nothing in Art. 19 ( l ) (g) shall 'prevent the State from making any law rel'ating to' 'the carrying on by the State, or by Corporation owned or controlled by the State, of any trade, business, industry or service. whether to the exclusion, complete or partial, of citizens or otherwise'. The argument was that the State or Corporation owned or controlled by the State could carry on trade, business, industry or senice to the exclusion. complete or partial, of citizens, only if the State made Jaw relating to it. The argument was repelled by the Court in these words :

"The plea sought to be founded on the phraseology used in Art. 19 ( 6) that the State intending to carry on trade or business must itself enact the law authorising it to carry on trade or business is equally devoid of force. The exnression 'the State' as defined in Art. 12 is inclusive of the Government and Parliament of India and the Government and the Legisla-

,,_ (I) [1960] J SCR 742@ 745, 752-753.

ture of each of the States. Under entry No. 21 of the Con-current List, the Parliament being competent to legislate for creating commercial or trading monopolies, there is nothing in the Constitution which deprives it of the power to create co=erial or trading monopoly in the constituent States. Article 19(6) is mere saving provision : its function is not to create [power but to immunise from attack the exercise of legislative power falling within its ambit. The right of the State to carry on trade or busine;s to the exclusion of others does not arise by virtue of Art. 19(6). The right of the State to carry on trade or business is recognised by Art. 29R: authority to exclude COID[petitors in the field of such trade or business is conferred on the State by entrusting power to enact laws under entry 21 of List III of the Seventh Schedule, and the exercise of that power in the context of fundamental rights is secured from attack by Art. 19(6).

In any event; the expression 'law' as defined in Art. 13(3) (a) includes any ordinance, order, bye-law, rule, regulation, notification, custom, etc., and the scheme framed under s.68C may properly be regarded as 'law' within the meaning of Art. 19 ( 6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Art. 19(1){g)".

Earlier in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab('), before the Seventh Amendment of the Constitution by which the present Article 298 was substituted for the old Article, the question arose whether it was beyond the competence of the executive Government to carry on business without specific Jegislatuve sanc-tion. The answer was that it was not. What was said by the Court in that case was incorporated in the Seventh Amendment of the Constitution. In that case the facts were that the State of Punjab. by series of executive orders had established for itself monopoly in the business of printing and celling textbooks for use in schools. The argument that legislative sanction was necessary to enable the State Government to carry on the business of printing and publishing text books was repelled and it was held that no fundamental right of the petitioners who had invoked the jurisdiction of the Court had been infringed.

Another of the submissions of the learned counsel was that G.0.Ms. No. 1312 dated December 2, 1977 involved major change of policy. which was legislative function and therefore beyond the competence

(1) [1955]2 SCR 225.

of subordinate legislating body. We do not agree with the submis-sion. Whenever there is switch over from 'private sector' to 'public sector' it does not necessarily follow that change of policy requiring express legislative sanction is involved. It depends on the subject and the statute. For example, if decision is taken to impose general and complete ban on private mining of all minor minerals, such ban may involve the reversal of major policy and so it may require Legislative sanction. But if decision is taken to ban private mining of single minor mineral for the purpose of conserving it, such ban, if it is ctherw:se within the bounds of the authority given to the Go-vernment by the Statute, cannot be said to involve any change of policy. The policy of the Act remains the same and it is, as we said, the conservation and the prudent and discriminating exploitation of minerals, with view to secure maximum benefit to the community. Exploitation of minerals by the private and/ or the public sector is contempleted. If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of particular mineral and, in consequence, the authority com-petent to make the subordinate legislation makes rule banning private exploitation of such mineral, which was hitherto permitted we are unable to see any change of policy merely because what was previously permitted is no longer permitted.

One of the arguments pressed before us was that Sec. 15 of the Mines and Minerals (Regulation and Development) Act authorised the making of rules for regulating the grant of mining leases and not for prohibiting them as Rule 8-C sought to do, a.nd. therefore, Rule 8-C was ultra vires Act, S. 15. Well known cases on the subject right from Municipal Corporation of the City of Toronto v. Virgo('), and Attorney General for Ontario v. Attorney General for the Dominion and the Distillers and Brewers Association of Ontario ([2]) upto State of Uttar Pradesh & Ors. v. Hindustan Aluminium Corporation Ltd. & Ors.,(") were brought to our attention. We do not think that 'Regulation· has the rigidity of meaning as never to take in Prohibi-tion'. Much df1Pends on the context in which the expression is used in the Statute aµd the object sought to be achieved by the contem-G plated regulation. It was observed by Mathew J. in G. K. Krishnan etc. etc. v. The State of Tamil Nadu & Anr. etc.,(') "the word 'regulation' has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied". Tn modern statutes concerned as they are with economic and social activities, 'regulation'

(!) [1896] A.C. 88. (2) [1896] A.C. 348. (3) [1979] 3 SCR 709. (4) [1975] 2 SCR 715@ 711

must. of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales(' )-and we agree with what was stated therein-that the problem whether an enactment was regulatory or something more or whether restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic considera-tion and tha.t it could not be laid down in no circumstances could the exclusion of competition so as to create monopoly, either in State or Commonwealth agency, to be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some eco-nomic activities and at some stage of social development, prohibition with view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minemls. Surely, in the case of scarce mineral, to permit exploitation by the State or its agency and to prohibt exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present. We have no doubt that the prohibiting of leases in certain cases is part of the regulation contemplated by Sec. 15 of the Act.

The submission of the learned counsel that the impugned rule contravened Articles 301 and 303 of the Constitution is equally without force. Now, 'the restrictions freedom from which is guaran-teed by Art. 301 would be such restrictions as directly and imme-diately restrict or impede the free flow or movement of trade" (Atiabari Tea Co. Ltd. v. State of A~sam & Ors.).(') And, "regu-latory measures or measures imposing compensatory !'axes for the use of trading facilities do not come within the purview of restrictions contemplated by Art. 301". "They are excluded from the purview of the provisions of Part XIII of the Constitution for the simple reason that they do not hamper, trade, commerce or inter-course but rather facilitate them" The Automobile Transport Rajasthan Ltd. v. State of Rajasthan & Ors. ([3]). The Mines and Minerals (Regulation and Development) Act is, without doubt regulatory measure, Parlia-ment having enacted it for the express purpose of "the regulation of mines :.nd the development of minerals". The Act and the rules

(1) [1950) A.C. 235.

. (2) [1961] 1 SCR 809.

(3) [1963] I SCR 491.

properly made thereunder are, therefore, outside the purview of Art. 301. Even otherwise Art. 302 which enables Parliament, by Jaw, to impose such restrictions on the freedom of trade, commerce or intercourse between one State l!_nd another or within any pmt of the territory of India as may be required in the public interest also fur-nishes an answer to the claim based on the alleged contravention of Art. 301. The Mines and Minerals (Regulation and Development) Act is low enacted by Parliament and declared by Parliament to be expedient in the public interest. Rule SC has been made by the State Government by notification in the official Gazette, pursuant to the power conferred upon it by Sec. 15 of the Act. statutory rule. while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for 11ll purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for al! purposes of construction or obligation. . (State of U.P. & Ors. v. Babu Ram Upadhya)('); (See also Maxwell : Interpretation of Statutes, 1 lth Edn. pp. 49-50). So, Statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the mean-ing of Art. 302 of the Constitution. To hold otherwise would be to ignore the complex demands made upon modern legislation which necessitate the plenary legislating body to discharge its legislative func-tion by laying down broad guidelines and standards, to lead and guide as it were, leaving it to the subordinate legislating body to fill up the details by making necessary rules and to amended the rules from time to time to meet unforeseen and unpredictable situations, all within the framework of the power entrusted to it by the plenary legislating body. State of Mysore v. H. Sanjeeviah(') was cited to us to show that rules did not become part of the statute. This was case where by reference to Sec. 77 of the Mysore Forest Act which declared the effect of the rules, it was held that the rules when made did not become part of the Act. That was apparently because of the specific provisions of Sec. 77 which while declaring that the rules wonld have the force of lllw stopped short of declaring that they would become part of the Act. In the absence of any express provision, as now, the ordinary rule as enunciated in Maxwell and State of Uttar Pradesh & Ors. v. Babu Ram Upadhya (supra) would perforce apply.

The next question for consideration is whether Rule SC is attracted when applications for renewal of leases are dealt with. The argument was that Rule 9 itself lllid down the criteria for grant of renewal of leases and therefore rule SC should be confined, in its application, to (I) [1961] 2 SCR 679 @ 702. (2) [1967] 2 SCR 361.

grant of leases in the first instance. We are unable to see the force of the submission. Rule 9 makes it clear that renewal is not to be obtained automatically, for thl' mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral develqpment and that the lease amount is reasonable in the circumstances of the case. These condi-tions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. If as result of expe-rience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frnstrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook. In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook. To renew leases in favour of such persons would make the making of Rule SC mere exercise in futility. It must be remembered that an application for the renewal of lease is, in essence an application for the grant of lease for fresh period. We are, therefore, of the view that Rule BC is attracted in considering applications for renewal of leases also.

Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms. No. 1312 (2-12-1977) should be dealt with as if Rule BC had not come into force. It was also contended that even applications for grant of leases made long before the date of G.0.Ms. No. 1312 should be dealt with as if Rule BC had not come into force. The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal !Pending for long time and then to reject them on the basis of Rule BC notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within reasonable time, it cannot on that account be said that the right to have an application disposed of in reasonable time clothes an applicant for lease with right to have the 11PPlication disposed of on the basis of the rules in force at the time of the making of the application. None has vested right to the grant or renewal of lease and none can claim vested right to have an application for the grant or renewal of lease dealt with in particular way, by applying particular provisions. In the absence

of any vested rights in anyone, an application for lease has neces-sarily to be dealt with according to the rules in force on the date of the disposal of the 8JPplication despite the fact that there is long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of l~ses !llade long prior to the date of G.0.Ms. No. 1312 should be dealt with as if Rule SC did not exist.

In the view that we have taken on the several questions argued be-fore us all the appeals arising out of applications for the grant or renewal! of leases for quarrying black granite in Government lands are allowed and the Writ Petitions filed in the Higb Court are dismissed. Special leave is granted in cases in which leave had not been previously granted. The appeals are allowed and disposed of in the same manner.

There are, however, few appeals in which the applications were not for the grant or renewal of leases to quarry black granite in Gov-ernment lands but were for permission to quarry black granite in Patta lands in which the right to minerals belonged to the applicants-D private owners themselves. Apart from the fact that Rule 8C occurs in group of Rules in Section II, which bears the head "Government lands in which the minerals belong to the Government" while the rules relating to lands in which the right to minerals belongs to private owners are dealt with in Section III. The language of Rule 8C is clear that it cannot have any application to lands in which the right to minerals belongs to the uppficants themselves. Rule SC is only concerned with leases for quarrying black granite and it cannot, there-fore, have any application to cases where no lease is sought from the Government. In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec. III of the Tamil Nadu Minor Mineral Con-cession Rnles. Rule 8C, it may be noted, does uot impose general ban on quarrying black gmnite but only imposes bar on the grant of leases of quarrying black granite. Appeals and Special Leave Petitions which arise out of applications for the grant of permission to quarry bJoack granite in the Patta lands belonging to the applicants themselves, have therefore, to be dismissed. The result is, Special Leave Petition Nos. 9257, 9259, 9260, 9271, 9273 to 9282 and 9284 of 1980 are dismissed and Special Leave Petition Nos. 9234 to 9248. 9250 to 9256, 9258, 9261 to 9270, 9272, 9283, 9285, 9286, 9288, 9289 and 9290 of 1980 are granted and Appeals allowed. Civil A~peal Nos. 2602 to 2604 of 1980 -are allowed. There will be no order as to costs.

Ordered accordingly.

MGIPF-152 SCI/81-2.500-24-8·81