M F PANIKER Vs. PIRAJI MORAJI

JUDGEMENT

(1.) The Metropolitan Magistrate 11 Court Ahmedabad has made this Reference as he formed the opinion that sec. 15 of the Mines and Minerals (Regulation and Development) Act 1957 is invalid and under the relevant section of the Code of Criminal Procedure this Reference has been made. The learned Magistrate has considered Entry 23 of the Second List that is the State List of the Seventh Schedule of the Constitution and also Entry 54 of List I of the same Schedule and he has observed that under Entry 54 Parliament can assume power to make laws with respect to regulation of mines and mineral development only when Parliament declares by law that such regulation and development under the control of the Union is declared by Parliament to be expedient in the public interest. Sec. 2 of the said Act reads: It is hereby 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 hereinafter provided. According to the learned Magistrate the Parliament has not separately declared by law the extent of control under Entry 54 of List I of the Seventh Schedule and therefore we have to go to the Act and read the Act as a whole to find out the extent of control prescribed for the regulation of mines and development of minerals in order to know the power of Parliament in respect of sec. 15 of the Act. It appeared to the learned Magistrate that the Parliament has not thought it fit to take over control of regulation of minor minerals and development of minor minerals and when that is so Parliament cannot make any provisions like those contained in sec. 15 of the Act. Sec. 15 makes it very clear that regulation of mines and minor minerals is left to the unguided discretion of State Government. So it means that with respect to minor minerals the control of the Union is not thought expedient and hence by virtue of Entry 23 of List II it is only the State Government which is the competent authority to make laws with respect to minor minerals and in that case sec. 15 of the Act appeared to him to be beyond the competence of the Parliament and hence sec. 15 appeared to him to be invalid.

(2.) In order to appreciate the real controversy in this case we must first refer to Entry 54 which is in these terms:- Regulation of mines and mineral development to the extent to which such regulation and the development under the control of the Union is declared by Parliament by law to be expedient in the public interest. Entry 23 of List II in the Seventh Schedule is as follows:- Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. Sec. 2 of the Act says: It is hereby 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 hereinafter provided. Thus it is obvious that by sec. 2 it is declared by Parliament by law 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 provided in the rest of the Act.

(3.) In STATE OF ORISSA V. M. A. PULLOCH & CO. A.I.R. 1964 S.C. 1284 N. Rajagopala Ayyangar J delivering the judgment of the Supreme Court has observed It does not need much argument to realise that to the extent to which the Union Government had taken under its control the regulation and development of minerals so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that Entry would to the extent of that control be superseded or be rendered ineffective for hear we have a case not of mere repug nancy between the provisions or the two enactments but of a denunciation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made. In BAIJNATH V. STATE OF BIHAR A.I.R. 1970 S.C. 1436 the question again came up before the Supreme Court. Hidayatullah C.J. delivering the judgment of the Supreme Court has pointed out in paragraph 14 It is open to Parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent. such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down the subject of legislation to the extent laid down becomes an exclusives subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature.