Case: Krishna Chandra Gangopadhyaya Etc Vs. Union Of India &amp; Ors

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 Unions 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 minerals4. The Bihar State which had on its statute book a land reforms law, sought to acquire control over mines and minerals and in that behalf added a second proviso to S. 10 (2) which roads thus (Bihar Act 4/65):Provided further that the terms and conditions of the said lease in regard to minor minerals as defined in the Mines and Minerals (Regulation and Development) Act, 1957 (Act LX.VII of 1957) shall, in so far as they are inconsistent with the rules of that Act, stand substituted by the corresponding terms and conditions 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 Collector5. The apparent legal result was that the State Government could shape the terms and conditions of the leases granted by the quondam proprietors and this was done by framing rules under Section 15 of the Central Act as the delegate of Parliament. Faced with a demand for higher levy put forward by the State which had been armed by the amendment of the Land Reforms law and the rules under S. 15 of the Central Act, mineral prospectors and quarriers moved petitions under Art. 226 of the Constitution in the Patna High Court. Although those petitions were dismissed appeals were carried to this Court which, as earlier stated, ended in success. It is important to note the reasons which weighed with this Court in striking down the two pieces of legislation, one amending the Bihar Act and the other, adding a sub-rule under the Central Act, so that an insight into the infirmities of the said legislations may be gained and the need and object of the validation appreciated.

Court's reasoning:
9. We listen largely to the language of the statute but where, as here, clearing up of marginal obscurity may make interpretation surer if light from dependable sources were to beam in, the Court may seek such aid. What has been described as the sound system of construction, excluding all but the language of the text and the dictionary is the key, hardly holds the field especially if the enactment has a fiscal or other mission, its surrounding circumstances speak and its history unfolds the mischief to be remedied. The Court, in its comity with the Legislature, strives reasonably to give meaningful life and avoid cadaveric consequence. We have set out the story of the rebirth, as it were of the law of minor mineral royalty levy to drive home the propriety of this method of approach. No doubt, there is some remissness in the drawing up of what professes to be a validating law and the neglected art of drafting bills is in part the reason for subtle length of submissions where better skill could have made the sense of the statute lucent and its validity above-board. Informed by a realistic idea of shortfalls in legislative drafting and of the social perspective of the statute but guided primarily by what the Act has said explicitly or by necessary implication we will examine the meaning and its impact on counsels contentionsThere is force in the submission that taking a total view of the circumstances of the validation Act Parliament did more than simply validate an invalid law passed by the Bihar Legislature but did re-enact it with retrospective effect in its own right adding an amending central Act to the statute bookWhat is moot is not the proposition but its application to our legislative situation.17. The crucial demarcation between Jaora sugar Mills, (AIR 1966 SC 416  ) and Jawaharmal, (AIR 1966 SC 764  ) is important and cannot be overlooked. The latter case dealt with a State Legislature ineffectually overcoming invalidity caused by absence of Presidential assent. Validation by a legislature must necessarily be of what it could validly have done and not of what someone else had to do. The assent of the President could not be made up for by the validating process adopted by the legislature. So it was that Jawaharmal suffered from legislative incompetence a second time18. It is important to notice, however, that the alleged vice of the legislation in the present case relates to a radically different area. What is within the competence of Parliament it seeks to do - validation by incorporation of legislation on a topic within its purview. The device adopted of re-enacting by validation is familiar to the Indian draftsman as to his Anglo-American counterpart. We have no doubt that incorporation of Acts is permissible in the absence of other disabling factors. It is one thing to say that retroactive validation by a competent legislature is impermissible; it is another to contend that there has not been a valid execution of this process - or rather Parliament has not, in the present case done what the draftsman ought to have done to effectuate the ostensible purpose of creating a new power to levy royalty and to alter the terms of the mining leases andthento give such newly created liability enterior effect,19. The controversy now shifts to the effectiveness or otherwise of the legislative device in achieving retroactive validation. We have already noticed that the second proviso to Section 10 (2) of the Bihar Act and sub-r. (2) of R. 20 of the Mineral Concession Rules, 1964 were void, as held by this Court. We have therefore to treat them as non est. We have already held that the Bihar Act qua Bihar Legislation could not be resuscitated by Parliament conferring such power through a law. The position may be different so far as Rule 20 (2) is concerned since that is a rule framed by parliament through its delegate, the state Government, although the rule itself being in excess of the power conferred by. Section 15 of the Central Act was ultra vires. In this invalidatory situation, Parliament passed art Act to validate the void provision of the Bihar Land Reforms Act, 1950 and the ultra vires, sub-rule of r.20 of the Mineral Concession Rules as well as the action taken and things done in connection therewith. The Act is itself short and consists of two sections, of which the latter is the only important one. It validates the laws specified in the schedule by a deeming device,. Secondly, it brings into force, backdating it, all action taken, rents and royalties realised and rules made notwithstanding any judgment decree or order of any Court.This two-stage procedure is absent in the statute under attack and therefore the purpose, whatever it be, has misfired, argues Mr. Sen. In plain terms the present case raises the question of enactment by reference and incorporation. It is correct to contend that curative statutes and validating exercises, unless the process is explicit enough and permissible otherwise, cannot be given ex post facto effect by courts. What is the intention of Parliament is mainly to be gathered from the language used, tested by approved canons of constructionThe ratio is apt to be misunderstood for, in its essence, the judgment merely holds that, where the later Act is entirely dependent upon the valid continuance of the earlier Act, which has been held unconstitutional, the, deeming provision cannot produce the desired effect. The learned Solicitor General, however, argues that the situation in the present case is altogether different. The earlier Bihar Act or the rules framed by the State Government under the Act do not have to be valid for sustaining the amending Act made by Parliament. The constitutionality of the earlier law has not to be posited for the survival of the Central amending Act. In this submission the learned Solicitor General is right and so the pro- position in Kamrup is inapplicable here. With great respect we agree with the position but, as earlier stated, the statutory complex confronting us is something different. In the present case, the Bihar Legislature is not legislating into validity, by a deeming provision, what has been declared ultra vires by the Court. It is Parliament, whose competency to legislate on the topic in question is beyond doubt, that is enacting the deeming provision. It follows that Hari Singh also cannot salvage the appellant25. In fairness to counsel for the appellant, we must state that the proposition in Jadao Bahujis case, (1962) 1 SCR 633   = (AIR 1961 SC 1486  ) about the powers of the Legislature, including within itself the power to make retrospective laws, was not canvassed. Indeed, to urge that Indian Legislatures were subject to a strange and unusual prohibition against retrospective legislating is as late as it is presumptuous,26. We have said enough to establish that no substantial objection to the Act in question can be pressed on the strength of incompetence of inoperative retroactivity. That is why the appellants submission was switched largely on the gross inadequacy of the language of S. 2 of the impugned Act to confer power on the State Government to validate the Rule 20 (2) or Section 10 of the Bihar Act29.Rule 20 (2) of the Mineral Concession Rules ,which has been validated by Section 2 sub-s. (1) and figures as item 4 of the Schedule to the impugned enactment, stands on an assured footing. This sub-rule is made by the Bihar Government purely as a delegate of Parliament, though beyond the scope of the delegation. Therefore Parliament could validate it and has done so. The source of the authority for rule-making being of Parliament, it is indubitable that the power to give it life retrospectively exists. Thus the impugned legislation, levy and other actions are good