NIHAL SINGH BHAJAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS order will dispose of C. W. Nos. 2850 to 2859. 2927 to 2934 and 2936 to 2972, as common Questions of law and fact are involved in these petitions.

(2.) THE facts of C. W. 2927 of 1973, M/s. Nihal Singh Bhaian Singh v. State of Punjab may be referred to for the decision of the common points of law. The petitioner is a firm carrying on the business of manufacture and sale of bricks at the brick-kiln situate in village Chahlan, district Ludhiana. The petitioner-firm is the owner of the land out of which brick-earth is extracted for the manufacture of bricks. Brick-earth was declared as a minor mineral by the Central Government bv Notification No. M-II-159 (18)-54-A-II, dated June 1, 1958, which notification was issued in exercise of the powers conferred bv clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the Act ). Section 15 of the Act gives power to the State Governments to make rules in respect of minor minerals and in exercise of that power, the Punjab Government promulgated the Puniab Minor Minerals Concession Rules, 1964 (hereinafter referred to as the Rules ). The District Industries Officers of various districts issued demand notices to the brick-kiln owners calling upon them to pay royalty, the amount of which was determined on the basis of the bricks manufactured bv each brick-kiln owner. The lew of that royalty was challenged in numerous petitions filed in this Court which were decided bv a Full Bench and the judgment is reported as Amar Singh Modi Lal v. State of Har-vana. ILR (1971) 2 Punj and Har 314 = (AIR 1972 Puni and Har 356) (FB ). In this judgment, it was held bv majority that Section 3 (e) of the Act and the notification issued thereunder declaring brickearth as 'minor mineral' did not suffer from anv vice of excessive delegation and that brick-earth is to be deemed to be a minor mineral. The rules with regard to minor minerals are to be framed by the State Government and that obviously includes the lew of rovaltv in respect of the prospecting licences and mining leases granted for exploitation. It was. however, held that as the petitioners did not hold a Prospecting licence nor were they mining licensees or holders of a short term permit for the purposes of exploiting minor minerals, thev were not liable to the lew of anv royalty. Under R. 20 of the Rules, the rovaltv can be levied only in connection with a mining lease and for that purpose, unless there is a subsisting contract between the petitioners and the State Government, no question of levying royalty under the Rules can arise. Reliance was placed. on Rules 28. 37 and 44 of the Rules which regulate the grant of contract by auction or tender or provide for the conditions of mining lease and the grant of short term permit. As the petitioners in those cases had not executed anv contract or agreement as abovesaid. they were not liable for the payment of anv royalty. The legal position that unless there is such a subsisting contract, no rovaltv Can be levied was not controverted on behalf of the State. Consequently, the not'ces of demand issued to the petitioners in those cases were Quashed. Thereafter, the various sections of the Act were amended by the Mines and Minerals (Regulation and Development) Amendment Act (56 of 1972 ). and Section 21 of the principal Act was amended bv substituting Sub-section (1) and adding Sub-sections (3), (4) and (5) after Sub-section (2 ). After amendment, Section 21 reads as Under:-21. Penalties:-- (1) Whoever contravenes the provisions of Sub-section (1) of Section 4 shall be punished with imprisonment for a term which mav extend to one year, or with fine which mav extend to five thousand rupees, or with both. (2) Any rule made under anv provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees for every dav during which such contravention continues after conviction for the first such contravention (3) Where anv person trespasses into any land in contravention of the provisions of Sub-section (1) of Section 4, such trespasser mav be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (4) Whenever anv person raises, without any lawful authority, any mineral from anv land, and, for that purpose, brings on the land any tool, equipment, vehicle or anv other thing, such mineral, tool, equipment, vehicle or other thing shall be liable to be seized by a magistrate specially empowered in this behalf. (5) Whenever anv person raises, without anv lawful authority, any mineral from any land, the State Government mav recover from such person the mineral so raised, or, where such mineral has already been disposed of the price thereof, and may also recover from such person, rent, rovaltv or tax, as the case mav be, for the period during which the land was occupied by such person without anv lawful authority. " This Amending Act came into force on September 13, 1972, and believinp that Sub-section (5) of Section 21 applied to unauthorised extraction of brick-earth even during the period prior to September 13, 1972, the District Industries Officers of various districts issued notices to the brick-kiln owners demanding the payment of royalty. The petitioner-firm received a notice to pay Rs. 3,883. 72 on account of royalty for the period from 1969 to March 1972. The whole of this period is prior to September 13, 1972 and the petitioner-firm has filed the present petition challenging the levy of the royalty.

(3.) VARIOUS objections have been raised in the petition but it is not necessary to deal with all of them. It was held by the Full Bench in M/s. Amar Singh Modi Lal's case, ILR (1971) 2 Punj and Har 304 = (AIR 1972 Punj and Har 356} (FB) (supra), that no royalty in respect of minor minerals could be levied unless the party held a prospecting licence or a mining lease or was holder of a short term permit for the purposes of exploiting minor minerals. It is admitted by the State that the petitioner-firm does not answer any of those categories but it is submitted that the petitioner-firm is covered under Section 21 (5) of the Act as amended and, therefore, the State Government can recover the royalty in respect of the brick-earth extracted even prior to September 13, 1972. as the amendment has retrospective effect. I am unable to agree. Sub-section (5) on its language does not indicate at all that its operation is retrospective. It is wholly prospective and will cover the cases of persons who raise, without any lawful authority, any mineral from any land after the coming into force of the Amending Act. The verb "raises" does not refer to the mineral raised from anv land prior to the coming into force of the Act. It is an established principle of interpretation that statutory provisions creating or taking away any substantive rights or imposing any sort of liability will always be interpreted as prospective in operation unless the Legislature expressly or by necessary intendment makes it retrospective. The second principle of interpretation is that if the language is ambiguous or admits of any doubt, the doubt has to be resolved in favour of the subject and not the Government, and the third rule of interpretation with regard to taxing statutes is that a tax can be levied only if under the provisions of the taxing statute it is leviable. The verb "raises", as I have said above, does not include the minerals already raised. It means the mineral which may be raised after the coming into force of the amendment. If the Legislature intended it to bo retrospective, it could have used a different language by saying "if any person has at any time raised, either before or after the coming into force of this sub-section", instead of saying "whenever anv person raises" or to say that "the following sub-section shall be inserted and shall be deemed always to have been inserted. " as has been done while amending Section 15 of the Act by the same Amending Act. It is thus apparent that the language to be used for making a provision retrospective was known to the Legislature and if that language was not adopted, the intention is clear that it was not meant to be retrospective and was meant only to be prospective.