n entry 23 although it incidentally touches land
115 C E b Union consists of its three limbs namely Parliament Union Government and Union Judiciary
Control by Parliament is therefore control of the Union within the meaning of entry 54 and for the purpose of ousting jurisdiction under entry 23
115 F G c The entire legislative field relating to minor minerals having been withdrawn from the State legislature it could not be said that because section 15 did not deal with modification of leases the State was free to legislate in this field
117 A C  CIVIL APPELLATE JURISDICTION Civil Appeals Nos
685 to 688 of 1967
Appeals from the judgments and orders dated November 1 1966 December 21 1966 and December 23 1966 of the Patna High Court in CWJC Nos 1036 686 1200 and 778 of 1965 respectively
AK Sen and PK Chatterjee for the appellants in all the appeals
Lal Narain Singha Lakshman Saran Sinha and D Goburdhun for the respondents in CA No 685 of 1967
BP Jha for the respondents in CA No 686 of 1967
UP Singh for the respondents Nos
1 to 3 in CAs
687 and 688 of 1967
103 Krishna Sen MM Kshatriya and GS Chatterjee for respondent No 4 in CA No 687 of 1967 and respondents Nos
5 to 8 in CA No 688 of 1967
RC Prasad for the intervener in CA No 685 of 1967
The Judgment of the Court was delivered by Hidayatullah CJ
This judgment will also govern the
disposal of Civil Appeals 686 Kanti Prasad Pandey vs State of Bihar and others 687 Shri Krishna Chandra Gangopadhya vs State of Bihar and others and 688 Ms Pakur Quarries Private Ltd  Ant
vs State of Bihar and others of 1967
These four appeals have been brought against a common judgment November 1 1966 of the High Court of Patna and arise out of four petitions under article 226 of the Constitution filed to question the validity of Proviso 2 to section 102 added by Bihar Land Reforms Amendment Act 1964 Bihar Act 4 of 1965 and the operation of the second sub rule of r 20 added on December 10 1964 by a notification of the Governor in the Bihar Minor Mineral Concession Rules 1964
The facts of all the four cases are similar and the same points arise for determination
It is therefore sufficient to state the facts in Civil Appeals 685 and 686 as illustrative of the others as well
One Jyoti Prakash Pandey obtained on March 23 1955 from Babu Bijan Kumar Pandey and Smt
Anita Devi acting for herself  and also as legatee under the will of one Baidyanath Pandey registered leases to quarry stone ballast boulders and chips from and upon Blocks Nos 32 451 452 and 453 in tauzi No 1452 khata No 1 in Mouza Malpahari No 89 in Pakur SubDivision of Santhai Parganas
The leases were to commence from November 1 1954 and to end on October 31 1984 that is to say they were for a total period of 30 years
Jyoti Prakash Pandey was working under the name and style of Stone India 
He sold his rights title and interest by a registered sale deed on September 9 1963 to the present appellant
It is admitted that rent under the terms of the original lease was deposited upto September 1965
On the passing of the Bihar Land Reforms Act 1950 Act 30 of 1950 the ex landlords ceased to have any interest from the date of vesting and in their place the State of Bihar became lessor under section 101 of the Land Reforms Act
The terms of section 10 were as given below
After the vesting of the estate of the inter 10
Subsisting leases of mines and minerals 1Notwithstanding anything contained in this Act where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof the whole or that part of the estate or tenure comprised in such lease shall with effect from the date of vesting be deemed to have been 104 mediaries the State of Bihar as the new lessor recognised the lease for the quarrying of stones for the remaining period and the Deputy Commissioner Santhal Parganas asked for the rent from the date of vesting to 30 April 1965 at the rate of Rs 200per year as stated in the original lease
This was by a letter issued from his office on February 2 1963
On December 10 1964 the appellants received a letter which gives the gist of the facts on which the present controversy starts and the relevant part may be quoted here Government have been pleased to amend the section 10 of Bihar Land Reforms Act 1950 and according to which the terms and conditions in regard to leases for minor minerals stand statutorily substituted by the corresponding terms and conditions by the Bihar Minor Mineral Concession Rules 1964
As a result of this rent and royalty etc
in respect of minor minerals in the State irrespective of the date on which the lease was granted are to be paid by all categories of leases according to the rates given in the aforesaid Rules with effect from 27 10 64 The appellants denied their liability to pay
The Government informed them by letter as follows This is to inform you that the terms and conditions of your mining lease in so far as they are inconsistent with the Bihar Minor Mineral Concession Rules 1964 framed by the State Government under section 15 of the Mines  Minerals Regulation  Development Act 1957 stand substituted by the corresponding terms and conditions prescribed by the Bihar Mineral Concession Rules 1964 from 27 1 1964
Accordingly leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease and such holder shall be entitIed to retain possession of the lease hold property
2 The terms and conditions of the said lease by the State Government shall mutatis mutandis be the same as the terms and conditions of the subsisting condition that if in the opinion of the State Government the holder of the lease had not before the date of the commencement of this Act done any prospecting or development work the State Government shall be entitled at any time before the expiry of one year from the said date to determine the lease by giving three months  notice in writing Provided that nothing in this sub section shall be deemed to prevent any modifications being made in the terms and conditions of the said lease in accordance with the provisions of any Central Act for the time being in force regulating the modification of existing mining leases
3 The holder of any such lease of mines and minerals as is referred to in subsection 1 shall not be entitled to claim any damages from the outgoing proprietor or tenure holder on the ground that the terms of the lease executed by such proprietor or tenure holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act
105 dead rent royalty and surface rent in addition to the other substitution as per Bihar Mineral Concession Rules 1964 will be as follows  1
Dead rent 
Rs 50 per acre perannum
Royalty 
Rs 3 per 100 cft
of stone chips
Rs 2 per 100 cft
of stone ballast and boulders
Rs 4 per 100 cft
on building stones
1 per 100 Nos
of stones setts 
Surface rent 3 
Rs 10 per acre per year
 It is this additional demand and the liability to pay which is the subject of controversy here
The Bihar Government contends that the terms of the original lease have been validly altered by the operation of the second proviso to section 10 2 of the Bihar Land Reforms Act added first by Ordinance III of 1964 and later incorporated again by the Bihar Land Reforms Amendment Act 1964 Act 4 of 1965 and the addition of section 10A to the Act by the same enactments
The material part of the second section of Act 4 of 1965 is quoted below
Section 10A provided for the vesting of the interest of leases of mines or minerals which were subject to such leases and need not be read here
The State Government also relied upon the Bihar Mineral Concession First Amendment Rules 1964 by which a second sub rule was added to Rule 20
The twentieth rule purporting to be framed under section 15 of the Mines and Minerals Regulation and Development Act 1957 67 of 1957 was amended on December 19 1964 and now reads Rule 20
 1  Dead rent royalty and surface rent
When a lease is granted or renewed
a dead rent shall be charged at the rates specified in Schedule 1 b royalty shall be charged at the rates specified in Schedule II and c surface rent shall be charged at the rates specified by the Govt
in the Revenue Department from time to time
Amendment of section 10 of Bihar Act XXX of 1950
In Section 10 of the Bihar Land Reforms Act 1950 Bihar Act XXX of 1950 hereinafter referred to as the said Act a in sub section 2 the following second proviso shall be added namely  Provided further that the terms and conditions of the said lease in regard to minor minerals as defined in the Act LXVII of 1957 shall in so far as they are inconsistent with the rules made by the State Government under section 15 of that Act stand substituted by the corresponding terms and conditions prescribed by those rules and if further ascertainment and settlement of the terms will become necessary then necessary proceedings for that purpose shall be undertaken by the Collector and b after sub section
LISup
Cl70 8 106 2 On and from the date of commencement of these rules the provisions of sub rule 1 shall also apply to leases granted or renewed prior to the date of such commencement and subsisting on such date
 The contention is that the amendment of section 10 of the Bihar Land Reforms Act is ultra vires the Constitution and that rule 202 does not legally entitle the recovery of the dead rent royalty etc
as in the Schedules to the Bihar Minor Mineral Concession Rules 1964
To understand fully the argument on behalf of the appellants a resume of the legislation on the subject of mines and minerals is necessary
Under the Government of India Act 1935 the subject of Mines and Minerals was covered by Entry 36 of the Federal Legislative List I and entry No 23 of the Provincial Legislative List II of the 7th Schedule
These entries read as follows Entry 36
Regulation of mines and oil fields and mineral developments to which such regulation and development under a Federal control is declared by Federal law to be expedient in the public interest Entry 23
Regulation of mines and oil fields and mineral development subject to the provisions of List I with respect to regulation and development under Federal control
 When the Indian Independence Act 1947 was passed the word federal  where it occurs for the first time in entry 36 and in entry 23 was changed to dominion 
The entries are practically repeated in the present Constitution and may be read immediately here Entry 54 of List H Union List reads 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
 Entry 23 of List II State List reads 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
 The difference between the entries of the Government of India Act 1935 and the present Constitution lies in the removal of oilfields from the entries and the declaration now must be by Parliament
Entry 53 in List I deals with oilfields and mineral resources
107 In 1948 the Legislative Assembly enacted the Mines and Minerals Regulation and Development Act 1948 Act 53 of 1948
It received the assent of the Governor General on September 8 1948
It was an Act to provide for the regulation of mines and oilfields and for the development of minerals
In section 2 of that Act is to be found the declaration contemplated by entries 36 and 23 7th Schedule of the Government of India Act 1935
That declaration reads as follows 2
It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided
 Section 3 of the Act of 1948 contained definitions
There were definitions of mine  and minerals 
The former meant an excavation for the purpose of searching for or obtaining minerals and included an oil well and the latter included natural gas and petroleum
Section 4 provided that no mining lease would be granted after the commencement of that Act otherwise than in accordance with the rules made under that Act and that a mining lease granted contrary to the provisions would be void and of no effect
Section 5 empowered the Central Government by notification to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area
In particular the rules could provide for the manner in which the minerals or areas in respect of which and the persons by whom applications for mining leases could be made and the fees payable the terms on which and the conditions subject to which mining leases might be granted the areas and the period for which any mining lease might be granted and the maximum and minimum rent payable by a lessee whether the mine was worked or not
Under section 6 the Central Government had power to make rules as respect mineral development
Section 7 then provided as follows 7
1 The Central Government may by notification in the official Gazette make rules for the purpose of modifying or altering the terms and conditions of any mining lease granted prior to the commencement of this Act so as to bring such lease into conformity with the rules made under sections 5 and 6 Provided that any rules so made which provide for the matters mentioned in clause c of sub section 2 shall not come into force until they have been approved either with or without modification s by the Central Legislature
108 2 The rules made under sub section 1 shall provide a for giving previous notice of the modification or alteration proposed to be made thereunder to the lessee and when the lessor is not the Central Government also to the lessor and for affording them an opportunity of showing cause against the proposal
b for the payment of compensation by the party who would be benefited by the proposed modification or alteration to the party whose rights under the existing lease would thereby be adversely affected and cfor the principles or which the manner in which and the authority by which the said compensation shall be determined
 Section 8 provided that the Central Government might by notification direct that any power exercisable under that Act might be exercised subject to such conditions if any as might be specified by such officer or authority or might be specified in the direction
In furtherance of the powers conferred the Central Government framed the Mineral Concession Rules 1949 and they came into force on the twenty fifth day of October 1949
These rules for the first time defined minor minerals and after amendments from time to time the term meant 3 ii minor mineral  means building stone boulder shingle gravel Chalcedony pebbles used for ball mill purposes only limeshell kankar and limestone used for lime burning murrum brick earth Fuller s earth Bentonite ordinary clay ordinary sand used for non industrial purposes road metal reh matti slate and shale when used for building material
 Rule 4 however provided 4
Exemption
These rules shall not apply to minor minerals the extraction of which shall be regulated by such rules as the Provincial Government may prescribe
 The word provincial was later changed to State 
Although some of the Provinces now States made Minor Mineral Concession Rules it is admitted that Bihar Government did not frame any such rules
The leases of the appellants  predecessors were granted in 1955 during the subsistence of the Act of 1948 and the Rules of 1949
It is also to be noticed that a fresh declaration was made by Parliament as required by entry 54 List I Union List of the 7th 109 Schedule of the Constitution
The existing laws however continued
Without a declaration by Parliament the field of legislation might have been open to the State Legislatures under entry 23 of List II State List of the Constitution but no law was made except what was enacted by the Bihar Legislature in the Land Reforms Act about vesting of mines in the State and the emergence of the State as a lessor in place of all original lessors
Further rules were made by the Central Government in 1955 and 1956
In 1955 Minerals Conservation and Development Rules were made which were later replaced in 1958
On September 4 1956 the Central Government in exercise of the powers conferred by section 7 of the Act of 1948 made the Mining Leases Modification of Terms Rules 1956
Under these rules existing Conservation and Development Rules
The expression existing mining leases were to be brought into conformity with the Minerals Conservation and Development Rules
The expression existing mining leases  was defined as a mining lease granted before 25th day of October 1949 and subsisting at the commencement of those rules but did not include any lease in respect of any minor mineral within the meaning of clause c of section 3 of the Act of 1948
We now come to the year 1957
In that year Parliament enacted the Act 67 of 1957
It came into force from December 28 of 1957 made amendments in the Act of 1948 so as to make the latter relate to oilfields only
All references to minerals other than oil were removed with the result that it became legislation exclusively relating to oil and gas
Since the Act of 1948 was thus altered Parliament enacted new provisions for minerals in Act 67 of 1957
We are primarily concerned with this Act in these appeals
A glance at some of the provisions of Act 67 of 1957 is necessary
The Act 67 of 1957 came into force on 1st June 1958 and extended to the whole of India
It contained the following declaration in section 2 It is hereby declared that it is expedient in the public interest that the Union should take under the control the regulation of mines and the development of minerals to the extent hereinafter provided
 By definition minerals excluded mineral oils because the Act of 1948 exclusively dealt with oil Minor minerals  were defined to mean 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
Act 67 of 1957 contained 33 sections which were separated by general headings 110 showing the topics dealt with
The first group of sections 4 9 contained general restrictions on undertaking prospecting and mining operations
of this group we may quote here section 4 which will be considered later 4
Prospecting or mining operations to be under license or lease 1  No person shall undertake any prospecting or mining operations in any area except under and in accordance with the terms and conditions of a prospecting licence or as the case may be a mining lease granted under this Act and the rules made thereunder Provided that nothing in this sub section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement
2 No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder
 Section 5 lays down restrictions on the grant of prospecting licences or mining leases
Section 6 prescribes
the maximum area for which a prospecting license or mining lease may be granted and section 7 the periods for which prospecting licences may be granted or renewed and section 8 the periods for which mining leases may be granted or renewed
Section 9 fixes the royalties in respect of mining leases
Then follows another group of sections 10 12 which lays down the procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government
The next group of sections 13 16 is headed Rules for regulating the grant of prospecting licences and mining leases
Section 13 gives power to the Central Government to make rules in respect of minerals
Section 14 however excludes the application of sections 4 13 to minor minerals
It reads The provisions of sections 4 to 13 inclusive shall not apply to prospecting licences and mining leases in respect of minor minerals Section 15 gives power to the State Governments to make rules in respect of minor minerals
It reads 111 15 1 
The State Government may by notification in the official Gazette make rules
for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith
2 Until rules are made under sub section 1  any rules made by a State Government regulating the grant of prospecting licences and mining leases m respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force
 Section 16 gives power to modify mining leases granted before 25th October 1949
It reads 161 
All mining leases granted before the 25th day of October 1949 shall as soon as may be after the commencement of this Act be brought into conformity with the provisions of this Act and the rules made under sections 13 and 18 Provided that if the Central Government is of opinion that in the interests of minerals development it is expedient so to do it may for reasons to be recorded permit any person to hold one or more such mining leases covering in any one State a total area in excess of that specified in clause b of section 6 or for a period exceeding that specified in sub section 1  of section 8
2 The Central Government may by notification in the official Gazette make rules for the purpose of giving effect to the provisions of sub section 1 and in particular such rules shall provide a for giving previous notice of the modification or alteration proposed to be made in any existing mining lease to the lessee and where the lessor is not the Central Government also to the lessor and for affording him an opportunity of showing cause against the proposal
b for the payment of compensation to the lessee in respect of the reduction of any area covered by the existing mining
lease and c for the principles on which the manner in which and the authority by which the said compensation shall be determined
 Section 17 stands by itself as a group and contains special powers of Central Government to undertake prospecting or minning operations in certain cases
Section 18 deals with mineral development and gives additional rule making power to the Central 112 Government
Next follow some miscellaneous provisions of these only two interest us
Section 19 lays down that prospecting licences or mining leases granted renewed or acquired in contravention of the provisions of the Act shall be void and of no effect and section 20 that the provisions apply to prospecting licences or mining leases whether granted before or after the Act
The rest of this Act does not concern this dispute
It may be pointed out here that the rules made under section 13 do not apply to minor minerals in view of the provisions of section 14
The State of Bihar had not made any rules till the Bihar Minor Mineral Concession Rules 1964 were made
The modification of the terms of existing mining leases was provided for in section 16 but that provision applied to mining leases granted before 25th October 1949
The provisions of Mining Leases Modification of Terms Rules 1955 did not apply to minor minerals because the definition of existing mining lease  excluded a lease in respect of any minerals
The power to modify the existing leases in the case had to be found elsewhere
The argument of the appellant is that apart from the provisions of the 2nd proviso to section 10 added to the Land Reforms Act 1950 in 1964 by Act IV of 1965 and second sub rule added to rule 20 of the Bihar Minor Mineral Concession Rules 1964 there is no power to modify the terms
These provisions of law are said to be outside the competence of the State Legislature and the Bihar Government
With regard to the State Legislature it is contended that the scheme of the relevant entries in the Union and State List is that to the extent to which regulation of mines and mineral development is declared by Parliament by law to be expedient in the public interest the subject of legislation is withdrawn from the jurisdiction of the State Legislature and therefore Act 67 of 1957 leaves no legislative field to the Bihar Legislature to enact Act 4  of 1965 amending the Land Reforms Act
As regards Rule 202 it is contended that the rule making power of its own force cannot reach mining leases granted in 1955 and that this could only be done by a competent legislature
These are the two matters which need decision
The main arguments are supplemented by the following contentions
That the Bihar Rules in so far as they make demands of rent and royalty on the existing leases which were executed prior to their coming into force are beyond the power to make rules in respect of minor minerals under section 15 of Act 67 of 1957 that section 15 itself is unconstitutional and void because it delegates legislative power to the rule making authority and it is excessive delegation and that the amendment of Bihar Land Reforms
Act is void because it affects the fundamental rights of the appellants guaranteed under Articles 31 and 19 of the Constitution
113 Although these supplementary arguments were raised it is obvious that they can arise according as the two main arguments are allowed or disallowed
Therefore it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment to section 10 of the Reform Act was wanting
As the amendment was made after Act 67 of 1957 we have to consider the position in relation to it
Entry 54 of the Union List speaks both of regulation of mines and minerals development and entry 23 is subject to entry 54
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 exclusive 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
This proposition is also self evident that no attempt was rightly made to contradict it
There are also two decisions of this Court reported in the Hingir Rampur Coal Co Ltd  Ors
vs State of Orissa and Ors1 and State Orissa vs
M A Tulloch  Co 2 in which the matter is discussed
The only dispute therefore can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature
If the impugned legislation falls within the ambit of such scope it will be valid if outside it then it must be declared invalid
The declaration is contained in section 2 of Act 67 of 1957 and speaks of the taking and the control of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself
We have thus not to look outside Act 67 of 1957 to determine what is left within the competence of the State Legislature but have to work it out from the terms of that Act
In this connection we may notice what was decided in the two cases of this Court
In the Hingir Rampur1 case a question had arisen whether the Act of 1948 so completely covered the fields of conservation and development of minerals as to leave no room for State legislation
It was held that the declaration was effective even if the rules contemplated under the Act of 1948 had not been made
However considering further whether a declaration made by a Dominion law could be regarded as a declaration by Parliament for the purpose of entry 54 it was held that it could not and there was thus a lacuna which the Adaptation of  2 1964 4 SCR 461
114 Laws Order 1950 could not remove
Therefore it was held that there was room for legislation by the State Legislature
In the M ATulloch case1 the firm was working a mining lease granted under the Act of 1948
The State Legislature of Orissa then passed the Orissa Mining Areas Development Fund Act 1952 and levied a fee for the development of mining areas within the State
After the provisions came into force a demand was made for payment of fees due from July 1957 to March 1958 and the demand was challenged
The High Court held that after the coming into force of Act 67 of 1957 the Orissa Act must be held to be non existent
It was held on appeal that since Act 67 of 1957 contained the requisite declaration by Parliament under entry 54 and that Act covered the same field as the Act of 1948 in regard to mines and mineral development the ruling in Hingir Rampur2 case applied and as sections 181 and 2 of the Act 67 of 1957 were very wide ruled out legislation by the State Legislature
Where a superior legislature evinced an intention to cover the whole field the enactments of the other legislature whether passed before or after must be held to be overborne
It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation
As section 19 1  covered the entire field there was no scope for the argument that till rules were framed under that section room was available
These two cases bind us and apply here
Since the Bihar State Legislature amended the Land Reforms Act after the coming into force of Act 67 of 1957 the declaration in the latter Act would carve out a field to the extent provided in that Act and to that extent entry 23 would stand cut down
To sustain the amendment the State must show that the matter is not covered by the Central Act
The other side must of course show that the matter is already covered and there is no room for legislation
We have already analysed Act 67 of 1957
The Act takes over the control of regulation of mines and development of minerals to the Union of course to the extent provided
It deals with minor minerals separately from the other minerals
In respect of minor minerals it provides in section 14 that sections 4 13 of the Act do not apply to prospecting licences and mining leases
It goes on to state in section 15 that the State Government may by notification in the official Gazette make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith and that until rules are made any rules made by the State Government regulating the grant of prospecting licences and mining lease in respect of minor minerals which were in force immediately before the commencement of 1 1964 4SCR461
2 1961 2 SCR 537 115 the Act would continue in force
It is admitted that no such rules were made by the State Government
It follows that the subject of legislation is covered in respect of minor minerals by the express words of section 151
Parliament has undertaken legislation and laid down that regulation of the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith must be by rules made by the State Government
Whether the rules are made or not the topic is covered by Parliamentary legislation and to that extent the powers of State Legislature are wanting
Therefore there is no room for State legislation
Mr LN Sinha argued that the topic of legislation concerns land and therefore falls under entry 18 of the State List and he drew our attention to other provisions on the subject of mines in the Land Reforms Act as originally passed
The abolition of the rights of intermediaries in the mines and vesting these rights as lessors in the State Government was a topic connected with land and land tenures
But after the mining leases stood between the State Government and the lessees any attempt to regulate those mining leases will fall not in entry 18 but in entry 23 even though the regulation incidentally touches land
The pith and substance of the amendment to section 10 of the Reforms Act falls within entry 23 although it incidentally touches land and not vice versa
Therefore this amendment was subject to the overriding power of Parliament as declared in Act 67 of 1957 in section 15
Entry 18 of the State List therefore is no help
Mr Lal Narain Sinha next contended that the provisions of sections 4 14 do not envisage control of the Union which is a condition precedent to the ousting of the jurisdiction under Entry 23
Obviously Mr Lal Narain Sinha reads Union as equivalent to Union Government
This is erroneous
Union consists of its three limbs namely Parliament Union Government and the Union Judiciary
Here the control is being exercised by Parliament the legislative organ of the Union and that is also control by the Union
By giving the power to the State Government to make rules the control of Union is not negatived
In fact it establishes that the Union is exercising the control
In view of the two rulings of this Court referred to earlier we must hold that by enacting section 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases
By the declaration and the enactment of section 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to section 10 in the Land Reforms Act
The enactment of the proviso was therefore without jurisdiction
116 This leaves for consideration the second sub rule added to Rule 20 in December 1964 by the State Government
It will be noticed that the rule as it stood previously applied prospectively to all 1eases which came to be executed after the promulgation of the rules
The second sub rule made applicable those provisions to all leases subsisting on the date of the promulgation of the rules
The short question is whether the rules could operate on leases in existence prior to their enactment without the authority of a competent legislature
Vested rights cannot be taken away except under authority of law and mere rule making power without the support of a legislative enactment is not capable of achieving such an end
There being two legislatures to consider namely Parliament and the State Legislature we have first to decide which legislature would be competent to grant such power
We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act 67 of 1957 particularly section 15
We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I The whole of the topic of minor minerals became a Union subject
The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level
Therefore if the old 1eases were to be modified a legislative enactment by Parliament on the lines of section 16 of Act 67 of 1957 was necessary
The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to section 10 of the Land Reforms Act
It will further be seen that Parliament in section 4 of Act 67 of 1957 created an express bar although section 4 was not applicable to minor minerals
Whether section 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in section 14 of Act 67 of 1957 that the provisions of sections 4 13 inclusive do not apply
Therefore there does not exist any prohibition such as is to be found in section 41 Proviso in respect of minor minerals
Although section 16 applies to minor minerals it only permits modification of mining leases granted before October 25 1949
In regard to leases of minor minerals executed between this date and December 1964 when Rule 201 was enacted there is no provision of law which enables the terms of existing leases to be altered
A mere rule is not sufficient
Faced with this difficulty Mr Lal Narain Sinha attempted to claim power for the second Proviso to section 10 of the Land Reforms Act from entry 18 of List II a contention we have rejected
He also attempted to find a field for enactment by the State Legislature for the said proviso
This argument was extremely ingenious and needs separate notice
117 The contention was that modification of existing leases was a separate topic altogether and was not covered by section 15 of Act 67 of 1957
Therefore if Parliament had not said anything on the subject the field was open to the State Legislature
The other side pointed to the words and for purposes connected therewith  in section 15 and contended that those words were sufficiently wide to take in modification of leases
Mr Lal Narain Sinha s argument is unfortunately not tenable in view of the two rulings of this Court
On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature
We have also held that vested rights could only be taken away by law made by a competent legislature
Mere rule making power of the State Government was not able to reach them
The authority to do so must therefore have emanated from Parliament
The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957
For that special legislative provision was necessary
As no such parliamentary law had been passed the second sub rule to Rule 20 was ineffective
It could not derive sustenance from the second Proviso to section 102 of the Land Reforms Act since that proviso was not validly enacted
In the result therefore these appeals must succeed
They are allowed with costs
A mandamus shall issue restraining the State Government from enforcing the provisions of the second Proviso to section 102 added by Bihar L and Reforms Amendment Act 1964 Bihar Act 4 of 1965 and the second sub rule of Rule 20 added by a notification on December 10 1964 to the Bihar Mineral Concession Rules 1964
GC Appeals allowed


Summary:
Entry 54 of the Union List I in the Seventh Schedule to the Constitution confers power for the 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
The corresponding entry in the Federal List I under the Government of India Act 1935 was entry 36 which besides mines and mineral development dealt with oilfields also
Entry 23 of List II of the Constitution gives power for regulation of mines and mineral development to the States subject to entry 54 of List I The corresponding entry under the Government of India Act was entry 23 of List Il
The Central Assembly in exercise of its power under entry 36
of List I in the Government off India Act enacted the Mines and Minerals Regulation and Development Act 53 of 1948 which dealt with mines mineral development as well as oilfields
Rule 4 of the Mineral Concession Rules 1948 made under the Act which came into force on October 25 1949 gave power to the State Government to frame rules for the regulation and development of minor minerals  as defined in the Rules
In 1957 Parliament passed the Mines and Minerals Regulation and Development Act 67 of 1957
The Act of 194 8 was adapted to deal with oilfields and gas only
In Act 67 of 1957 the provisions relating to regulation of mines in ss 4 to 13 were by section 14 made inapplicable to minor minerals  as defined in the Act
Rules relating to minor minerals were under section 15 to be made by State Governments and till such rules were made any rules enforce at the commencement of the Act were to continue
The appellant purchased in 1963 a lease for quarrying minor minerals as defined in Act 67 of 1957 from a vendor who had taken the original lease from the then landlords in 1955
When under section 101 of the Bihar Land Reforms Act 1950 the rights of the intermediary landlord vested in the State of Bihar the said State became lessor of the appellant s lease
The lease was confirmed on behalf of the State and rent under the terms of the original lease was paid by the appellant up to September 1965
The Bihar Government had not framed any rules relating to minor minerals under Act 53 of 1948 but it framed the Bihar Minor Mineral Contession Rules 1964 under section 15 of the Act 67 of 1957
Also in 1964 the Bihar legislature amended section 102 of the Reforms Act
A second pro viso was added to sub el
2 whereby the terms and conditions of and pubsisting leases of minor minerals would be substituted by the terms and 101 conditions laid down in the Bihar Minor Mineral Concession Rules to the extent that the former were inconsistent with the latter
Rule 20 of the said Bihar Rules as originally framed provided for realisation of dead rent royalty and surface rent in respect of leases granted or renewed
In terms the rule was prospective only
But in December 1964 it was amended by the addition of a second sub rule according to which the provisions as to dead rent etc
would also apply to leases granted or renewed prior to the date of the commencement of the Act and subsisting on such date
On the strength of the amended section 102 of the Reforms Act and the amended r 20 the Bihar Government demanded from the appellant dead rent royalty and surface rent contrary to the terms of his lease
The appellant thereupon filed a writ petition in the High Court
Dissatisfied with the judgment of that court the appellant came to this Court
It was contended on behalf of the appellant i that the subject of regulation of mines and mineral development came within the exclusive jurisdiction of Parliament as a result of the passing of Act 67 of 1957 with the result that the State Legislature was left with no power to pass the second proviso to section 102 and the said proviso was therefore ultra vires ii that r 202 being without legislative support could not touch a lease granted in 1955
On behalf of the respondent State it was urged that a the 2nd proviso to section 102 of the Reforms Act fell not under entry 23 but under entry 18 of List II which dealt with land and land tenures b Act 67 of 1957 did not result in control of the union as contemplated by entry 54 in List I and therefore the State s jurisdiction under entry 23 List II was not ousted c modification of leases was not covered by section 15 of the said Act and since Parliament was silent on that subject the field remained open for legislation by the State
HELD i Entry 54 of the Union List speaks both of regulation of mines and mineral development and entry 23 is subject to entry 54
It is open to Parliament to declare that it is expedient in the public interest that the control should vest in Central Government
Once this declaration is made and the extent laid down the subject of the legislation to the extent laid down becomes an exclusive subject for legislation by Parliament
Any legislation by the State after such declaration and touching upon the field disclosed
in the field is extracted from the legislative competence of the State
113 B D The declaration contemplated by entry 54 is contained in section 2 of Act 67 of 1957 and the Central Government is given control as to regulation of mines and mineral development to the extent provided in the Act
Thus what is left within the competence of State Government has to be worked out from the terms of the Act itself
113 F The Act deals with minor minerals separately from other minerals
In respect of minor minerals it provides in section 14 that sections 4 to 13 do not apply to prospecting licences and mining leases
It goes on to state in section 15 1  that the State Government may by notification make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith and in section 152 that till such rules are framed any rules already in force would continue
No rules existed in the State of Bihar which could be preserved under section 152
Therefore the whole subject of legislation was covered in respect of minor minerals by section 151
Whether rules under that section were made or not the topic was covered by Parliamentary legislation and to that extent the powers of the State Legislature were wanting
114 G 115 B It must accordingly be held that by the declaration in section 2 and by the enactment of section 15 the whole of the field relating  to minor minerals came 102 within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to section 102 of the Land Reforms Act
The second proviso was therefore ultra vires
Hingir Rampur Coal Co Ltd  Ors
vs State of Orissa  Ors
 and State of Orissa vs
MA Tulloch ii Vested interests cannot be taken away except by law made by a competent legislature
Mere rule making power is not sufficient
In view of Act 67 of 1957 the Bihar Legislature had lost jurisdiction to legislate about minor minerals
The power of the Central Government to modify existing mining leases was confined under section 16 of the Act to leases granted before October 25 1949
For modifying leases granted after that date legislation by Parliament on the lines of section 16 was necessary
Rule 202 of the Bihar Minor Concession Rules 1964 was ineffective for the purpose
It could not derive sustenance from the 2nd proviso to section 102 of the Reforms Act as that proviso was not validly enacted
There was also no other legislative support since section 15 of the Act of 1957 did not contemplate alteration of terms of leases already in existence before that Act was passed
116 B E 116 G 117 D iii The contentions raised on behalf of the State must be rejected a The abolition of the rights of intermediaries in the mines and vesting of these rights as lessors in the State Government was a topic connected with land and land tenures
But after the mining leases stood between the State Government and the leases any attempt to regulate those mining leases will fall not in entry 18 but in entry 23
The pith and substance of the amendment to section