KRISHNA CHANDRA GANGOPADHYAYA Vs. UNION OF INDIA

JUDGEMENT

(1.) The central issue in these petitions deals with the question whether a statute and a rule earlier declared by the Court unconstitutional or otherwise invalid, can be retroactive through fresh validating legislation enacted by the competent legislature. More pointedly, the constitutionality of Rule 20 (2) framed by the Bihar Government under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act LXVII of 1957) (for short, the Central Act) and the second proviso to S. 10 (2) of the Bihar Land Reforms Act, 1950 (for brevity, the Bihar Act) has been challenged on various grounds in the petitions, a validating statute by Parliament transforming them into Central legislation, as will be presently explained. The subject of the litigation is minor minerals and the right of the petitioners adversely affected by the impugned legislation, is to quarry stones etc., on the strength of leases granted to them by erstwhile proprietors whose ownership vested in the State by virtue of the Bihar Act. By the combined operation of the second proviso to Section 10 (2) of the Bihar Act and Rule 20 (2) (framed by the State Government) of the Bihar Minor Mineral, Concession Rules, 1964 (hereinafter called the Rules) the petitioners were called upon to pay certain rents and royalties in respect of mining operations, but the power of the State, clothed by these provisions, was put in issue in the first round of litigation by lessees of quarries, which culminated disastrously against the State in Baij Nath Kedia v. State of Bihar, (1970) 2 SCR 100 . This Court, in that case, held that the Bihar Legislature had no jurisdiction to enact the second proviso to S. 10 (2) of the Bihar Act, because it went further to hold that Section 15 of the Central Act, read with Section 2 thereof, had appropriated the whole field relating to minor minerals for Parliamentary legislation. This Court proceeded to lay down that the Second sub-rule, added by the Notification dated December 10, 1964 to R.20 of the rules did not affect leases in existence prior to the enactment of the rules. The upshot of the decision was that the action taken by the Bihar Government in modifying the terms and conditions of the leases which were in existence anterior to the rules and the levy sought to be made on the strength of the amended Bihar Act and rule were unsustainable. Thereupon the State persuaded Parliament to enact the Validation Act of 1969 with a view to remove the road-blocks which resulted in the, decision in Kedih's case (supra). The preamble and the short Act (now impugned) provide thus:

(2.) The legal question canvassed before us is as to whether the Amending Act in question has been an exercise in futility because of an unconstitutional essay and foggy drafting or has achieved the purpose set by Parliament which is transparent from the legislative history. Shri A. K. Sen, counsel for the petitioner, has turned the focus mainly on one or two deficiencies in the enactment of the Act by Parliament. Shri Sen's submission is that notwithstanding the validating measure, the right claimed by the State to alter the terms of the lease or to impose a new levy has not been validly acquired.

(3.) Mines and minerals, as topics of legislation, fall under the Union and the State Lists. Under our scheme of distribution of legislative powers, particularly when subjects of national and provincial concern are involved, an inter-locking arrangement is provided whereby the Union has a dominant say and the States a lesser role, the present case of mines and minerals being an instance in point. The relevant Entries in the VII Schedule are item 54 of List I and item 23 of List II. The latter is expressly made subject to the provisions of List I with respect to regulation and development under the controll of the Union and the Union's powers extend to regulation and development of mines and minerals 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'. In the exercise of the above power, the Union Parliament passed the Central Act which covered not merely the field of major minerals but also occupied the area of minor minerals, as is evident from Ss. 15 and 16 of the Act. (The necessary declaration visualised in Entry 54 of List I is made by Section 2 of the Central Act). Although the legislation was made by Parliament, Section 15 conferred power on the State Government as its delegate to make rules in respect of minor minerals.