State of
Rajasthan Vs. Hindustan Sugar Mills Ltd.
& Ors [1988] INSC 174 (14 July 1988)
Thakkar,
M.P. (J) Thakkar, M.P. (J) Ray, B.C. (J)
CITATION:
1988 AIR 1621 1988 SCR Supl. (1) 461 1988 SCC (3) 449 JT 1988 (3) 57 1988 SCALE
(2)20
ACT:
Mines
and Minerals (Regulation and Development) Act, 1957 Section 9(3)(b)-Levy and
Collection of royalty on limestone-Notification enhancing the levy-Validity of.
Constitution
of India, 1950-Art. 226-High Court
exercising high prerogative power-to mould relief in a just and fair manner as
required by the demands of the situation.
HEAD NOTE:
The
Central Government issued a Notification dated January 29, 1970 under the Mines and Minerals (Regulation and Development)
Act, 1957 authorising the levy and collection of royalty on limestone at
Rs.1.25 per tonne. The Respondents filed a writ petition in the High Court
challenging the Notification.
The
High Court struck down the impugned notification on the ground that the Central
Govt. had enhanced the rate of royalty by virtue of the said notification in
disregard of the statutory embargo embodied in clause (b) of the proviso to
section 9(3) of the Act which prohibits enhancement more than once during any
period of four years.
The
State of Rajasthan which was recovering royalty at the
enhanced rates has filed these two appeals by special leave.
Allowing
the appeals partly, this Court, ^
HELD:1.1
The only vice in the impugned Notification is that the enhancement was authorised
nearly four months too soon in advance i.e. On January 29, 1970. The
enhancement could have been made with impunity without violating proviso (b) to
sub-section(3) of section 9 about four months later.
The
enhancement was therefore unenforceable only during this period of four months.
The enhancement could have been lawfully made without any impediment on June 1, 1970. During this interregnum the
Notification would have remained dormant. Under the circumstances the just and
fair course to adopt is to issue a Writ restraining the State of Rajasthan from
enforcing the enhance- 462 ment for the interregnum of about four months
expiring on 31st May, 1970 instead of striking down the Notification in
absolute terms for all times as has been done by the High Court. [469B-E]
1.2
The enhancement was merely premature and not void in the sense that the
enhancement could have been lawfully enforced with effect from June 1, 1970 and could not have been made
enforceable on the date of the issuance of the Notification on 29th January, 1970. Such a Notification in the eye of law,
must be treated as dormant for the interregnum of about four months till it
becomes enforceable on June
1, 1970 upon the
commencement of the next four-year block. The enhancement was authorised by the
Legislature.
However,
there was an embargo making it enforceable only once during the course of the
four-year block. It would be taking a super-technical view to hold that a fresh
Notification could have been issued on June 1, 1970 and that Notification issued on 29th January, 1970 should be quashed.
[467G-H;
468A-B] D.K. Trivedi & Sons and ors. v. State of Gujarat & Ors. etc., [1986] Suppl. SCC
20, relied on.
Mahendra
Lal Jaini v. The State of Uttar Pradesh
& Ors., [1963] Suppl. 1 SCR 912 and Bhikaji Narain Dhakaras v. The State of
Madhya Pradesh, [1955] 2 SCR 589, distinguished.
2. The
High Court was exercising high prerogative jurisdiction under Article 226 and
could have moulded the relief in a just and fair manner as required by the
demands of the situation. The High Court could well have proceeded on the
premise that the enhancement made pursuant to the Notification dated January
29, 1970 was unenforceable for the four months preceding June 1, 1970 on which
date the enhancement could have been lawfully enforced pursuant to the
Notification. [467F-G]
3. The
order of the High Court quashing the impugned Notification dated January 29, 1970 is set aside. In place thereof the
State of Rajasthan is restrained from enforcing the
impugned Notification till 31st May, 1970
with the clarification that the enhancement as per the said Notification authorising
collection of levy at Rs.1.25 per tonne would be enforceable with effect from June 1, 1970 onwards. [469G-H] [This Court
observed that such amount as remains to be recovered in the light of the
present Judgment will have to be paid 463 by the Respondents on or before
September 30, 1989, failing which the appellant will be entitled to recover the
same from the Respondents.] [469G-H]
CIVIL
APPELLATE JURISD1CTION: Civil Appeal No. 1743 & 1744 of 1973.
From
the Judgment and order dated 9.5 1972 of the Rajasthan High Court in D.B. Civil
Special Appeal No 110 of 1972.
Badri Das
Sharma for the Appellant.
G.L. Sanghi
and A.K. Sanghi for the Respondents in C.A.
No. 1743/1973.
K.K.
Jain, Bishambar Lal, P. Dayal and A.D. Sangar for the Respondents in C.A. No 1744/1973.
The
Judgment of the Court was delivered by THAKKAR, J: The High Court having struck
down the Notification dated January 29, 1970 issued by the Central Government authorising
the levy and collection of royalty on limestone at Rs.1.25 per tonne, the State
of Rajasthan which was recovering royalty at the aforesaid rate under the Mines
and Minerals (Regulation and Development) Act, 1957 (Act) has approached this
Court by way of these two allied appeals by special leave. The impugned
Notification has been struck down by the High Court on the ground that the
Central Government had enhanced the rate of royalty by virtue of the said
Notification in disregard of the statutory embargo embodied in clause (b) of
the proviso to Section 9(3)' of the Act which prohibits enhancement "more
than once during any period of four years".
1.
"S.9-Royalties in respect to mining leases.
(3)
The Central Government may. by notification in the official Gazette amend the
Second Schedule so as to enhance or reduce the rate at which royalty shall be
payable in respect of any mineral with effect from such date as may he
specified in the Notification:
Provided
that the Central Government shall note:
(a) xxx
(b) Enhance the rate of royalty in respect of any mineral more than once during
any period of four years".
464
The contention of the respondents (original Writ Petitioners in A the High
Court) was that enhancement by amending the schedule could be effected only
once within four years of the 'earlier enhancement'. The interpretation
canvassed by them (referred to as Writ Petitioners hereafter) was that the
expression "during any period of fol(r years" would mean during the
block of four years 'Commencing from the last date on which the enhancement was
made'. This interpretation was accepted by the High Court Now this Court in
D.K. Trivedi & Sons and ors. v. State of Gujarat & Ors. etc., [1986] Suppl. Supreme Court Cases 20 has
interpreted this very expression in a provision which is in puri-materia as
prohibiting enhancement of royalty in respect of any mineral more than once
during any period of four years 'commencing from the date of the enforcement of
the Rules.' In other words while the High Court has taken the view that the
point of commencement of the period of embargo must begin with effect from the
date on which the last enhancement was made, this Court has taken the view that
the four year period of embargo must commence from the date of the commencement
of the Rules. And that further enhancement can be made only once during the
subsequent block of four years so computed. Of course in D.K. Trivedi's case
this Court was concerned with an analogous provision in the Gujarat Rules. But
the problem of interpretation was identical namely whether the four-year block
would commence from the 'date of enforcement of the Rules' or whether each
block would commence from the 'date of last enhancement'.
Madon,J.
speaking for the Court has resolved the controversy in the passage extracted hereinbelow:
"As
the Gujarat Rules have been amended from time to time by the impugned
notifications so as to enhance or reduce the rate of royalty or dead rent or
both, it is necessary at this stage before turning to the Gujarat Pules to
consider what the expression "during any period of four years"
occurring in the proviso to Section 15(3) mean It is pertinent to note that the
words used in the proviso are "shall not enhance the rate of royalty ...
for more than once during any period of four years". This is a wholly
different thing from saying that where the rate of royalty has been enhanced
once it shall not be enhanced again for a period of four years or, in other
words until a period of four years from the date of such enhancement has
expired. The period of four years for this purpose must be and can only be
reckoned from the date of corning into force of the rules and it is open to a
State Government to enhance the rate of roy- 465 alty or dead rent at any time
during the period of four years from the coming into force of the ruIes and
after each period of four years expires at any time during each succeeding
period of four years.
The
Gujarat Rules came into force on April 1, 1966 Therefore, in the case of
Gujarat Rules the first period of four years would be April 1, 1966 to March
31, 1970, the second period would be April 1, 1970 to March 31, 1974, the third
period would be April 1, 1974 to March 31, 1978, the fourth period would be
April 1, 1978 to March 31, 1982, the fifth would be April 1, 1982 to March 31,
1986 and so on thereafter Thus, during any of these periods of four years both
dead rent and royalty can be enhanced by the Government of Gujarat but only
once during each such period." (Emphasis added) Thus the question
regarding interpretation is no more res- integra. Applying the law as declared
by this Court in Trivedi's case (supra) an enhancement in the rate of royalty
can be effected once in the successive four-year blocks succeeding on the heels
of the first four-year block commencing from June 1, 1958 and expiring on 31st
May, 1962.
In
other words the rate of royalty could have been lawfully enhanced once during
each of the four-years blocks specified hereunder viz: 1.6.1962 to 31.5.1966
1.6.1966 to 31.5.1970 1.6.1970 to 31.5.1974 The rates of royalty were however
revised in the manner indicated hereafter. During the first block of four years
that is to say from 1.6.1958 to 31.5.1962 the rate of royalty on limestone was
fixed at Rs. 0.75 per tonne subject to a rebate on extractions made by recourse
to a particular process (froth flotation method) During the second block of
four years commencing from 1.6.1962 to 31.5 1966, no change was effected in the
rate of royalty. In the third block commencing from 1.6.1966 to 31.5.1970, the
Central Government issued a notification dated 1.7.1968 whereby the rate of
royalty in respect of limestone was again revised.
The
relevant entry reads thus:
"8.
Limestone:
(i)
Superior grade with 45% or more CaO Rs.1.25 per tonne.
466
(ii) Inferior grade with less than 45% CaO Rs.0.75 per tonne On January 29,
1970 in the same block of four years commencing from 1.6.1966 to 31.5.1970, the
Central Government issued another notification, the impugned Notification
(dated January 29, 1970) whereby the distinction between the two grades of
limestone was abolished and rate of royalty was fixed at Rs.1.25 per tonne.
This was achieved by substituting the entry pertaining to royalty leviable on
limestone by an entry in the following terms:
"Limestone-Rs.1.25
per tonne." The change effected by the impugned Notification vis-a- vis
earlier Notification is better comprehended when the entries are juxtaposed as
under:
'First'
and 'second' 'Third'four-year four-year Blocks Block 1966-70 1958-62 &
1962-66 _______________________________________________________ Date of
Notification 29-6-68 29-1-70 Rate of royalty fixed Rs.0.75 per (a) Superior for
limestone tonne (subject grade to a rebate of with Rs.0.38 per tonne 45% or on
limestone more beneficiated CaO by froth float- Rs.1.25 ation process.) per tonne.
Limestone Rs.1.25 (b) Inferior per grade tonne.
with
less than 45% CaO- Rs.0.75 per tonne.
467 In
the net result the position which emerges is this:
The
Writ Petitioners were paying royalty at Rs.0.75 per tonne subject to a rebate
which was granted on the extraction being made by recourse to a particular
process till the third four year block commencing on June 1, 1968.
Thereafter
by virtue of the Notification dated June 29, 1968 the petitioners had to pay
royalty at Rs.0.75 per tonne for the inferior grade limestone but the rebate
was discontinued. Under the circumstances the Writ Petitioners complained that
as a matter of fact enhancement was effected twice during the four-year block
of 1966-70. It was contended that by virtue of the Notification dated 29.6.1968
inasmuch as the rebate of Rs.0.38 per tonne which was hitherto being granted
was withdrawn it constituted the first enhancement during this block and
inasmuch as the rate of royalty was again enhanced to Rs.1.25 per tonne persuant
to the impugned Notification dated January 29 1970 it constituted an
enhancement for the second time in the same four-year block.. On these premises
it was urged that the embargo engrafted by Section 9(3)(b) of the Act was
violated by the impugned Notification and consequently the said Notification
was null and void. The High Court upheld the plea and came to the conclusion
that the second enhancement would be being enforced for the first time in the
fourth four-year block commencing from June 1, 1966. The learned Counsel for
the appellant is, under the circumstances, perfectly justified in submitting
that the High Court instead of striking down the Notification in toto could
well have made the Notification unenforceable for a period of four months of
the third four-year block expiring on 31st May, 1970, without prohibiting its
enforcement even with effect from June 1, 1970 from which date the fourth four-
year block commenced, and the enhancement could have been made without any
impediment in law. The High Court was exercising high prerogative jurisdiction
under Article 226 and could have moulded the relief in a just and fair manner
as required by the demands of the situation. The High Court could well have
proceeded on the premise that the enhancement made pursuant to the Notification
dated January 29, 1970 was unenforceable for the four months preceding June 1,
1970 on which date the enhancement could have been lawfully enforced pursuant
to the Notification. Till then the Notification would have remained
unenforceable for that limited period of four months during which the embargo
would have been in operation. In our opinion, the enhancement was merely
premature and not void in the sense that the enhancement could have been
lawfully enforced with effect from June 1, 1970 and could not have been made
enforceable on the date of the issuance of the Notification on 29th January, 1970. Such a Notifica- 468 tion, in the
eye of law, must be treated as dormant for the interregnum A of about four
months till it becomes enforceable on June 1, 1970 upon the commencement of the fourth
four-year block. The enhancement was authorised by the Legislature. However,
there was an embargo making it enforceable only once during the course of the
four-year block. It would be taking a super-technical view to hold that a fresh
Notification could have been issued on June 1, 1970 and that the Notification
issued on 29th January, 1970 should be quashed for all times notwithstanding
the fact that it was unenforceable only for the interregnum of four months and
there was no impediment to its enforcement on the expiry of the third four-year
block on 31st May, 1970. An illustration will make the point clear. The Writ
Petitions giving rise to both the appeals were instituted after fourth
four-year block which commenced on 1.6.1970 and the embargo no longer
subsisted. The effect of the impugned Notification was that it authorised the
appellant to collect royalty at the rate of Rs. 1.25 every day subsequent to
the issuance of the Notification. For four months expiring on 31st May, 1970
the Writ Petitioners could successfully contend that the enhancement cannot be
enforced in view of the statutory embargo raised by proviso (b) to sub-section
(3) of Section 9 of the Act. But from June 1, 1970 onwards this legal weapon of
resistence was not available to the Writ Petitioners. They could not have
sought shelter under the umbrella of proviso (b) to sub-section (3) of Section
9 of the Act, having regard to the fact that the enhancement was being enforced
for the first time in the four-year block commencing on June 1, 1970. Such
being the position the just and fair order to pass would have been to restrain
the appellant from enforcing the Notification for the interregnum between
January 29, 1970 till 31st May, 1970, i.e. for about four months, instead of
quashing the Notification. The learned Counsel for the Writ petitioners has
however contended that enforcement even subsequent to June 1, 1970 was not
permissible in law. Insupport of this proposition reliance was placed on Mahendra
Lal Jaini v. The State of Uttar Pradesh & Ors, [1963] Suppl. 1 S.C.R. 912.
We are unable to accede to this submission. In Mahendra Lal Jaini's case
(supra) this Court was dealing with a post- constitutional legislation which
was inconsistent with the fundamental rights conferred by the Constitution of
India and was accordingly rendered void by virtue of Art. 13(2) of the
Constitution of India. It was in this context that the expression 'still born'
was used in regard to the impugned legislation.
Of
course having regard to the constitutional command embodied in Art. 13(2) no
State can make any law abridging the rights conferred by part III of the
Constitution of India and any such law made in contravention of this clause
would be void. As a matter of fact in Mahendra Lal 469 Jaini's case the
doctrine of eclipse enunciated in Bhikaji Narain Dhakaras v. The State of
Madhya Pradesh, [1955] 2 S.C.R. 589 to the effect that the questioned law would
remain dormant till the clout was removed whereupon it would become alive, has
been approved. In the present case we are not concerned with a piece of
legislation which offends Art. 13(2) of the Constitution of India. It is therefore futile to contend
that the principle enunciated in Mahendra Lal Jaini's case would justify
striking down of the Notification for all times in future. As has been observed
earlier the only vice in the impugned Notification is that the enhancement was
authorized nearly four months too soon in advance. The enhancement could have
been made with impunity without violating proviso (b) to sub-section (3) of
Section 9 about four months later. The enhancement was therefore unenforceable
only during this period of four months. It is not even disputed that the enhancement
could have been lawfully made without any impediment on June 1, 1970.
Inasmuch
as it was made nearly four month too soon, on January 29, 1970, the enhancement
would be unenforceable during this interregnum of approximately four months.
During this period the Notification would have remained dormant.
Under
the circumstances the just and fair course to adopt is to issue a Writ
restraining the State of Rajasthan from enforcing the enhancement for the
interregnum of about four months expiring on 31st May, 1970 instead of striking
down the Notification in absolute terms for all times as has been done by the
High Court. It would have become vibrant and enforceable with effect from June
1, 1970. There is absolutely no warrant or justification to restrain recovery
at the enhanced rate for the period subsequent to June 1, 1970 notwithstanding
the fact that there is no legal bar under proviso (b) to sub-section (3) of
Section 9 to give effect to the Notification with effect from that date. Under
the circumstances we allow the appeals partly. The order passed by the learned
Single Judge of the High Court quashing the impugned Notification dated January
29, 1970 as confirmed by the Division Bench of the High Court is set aside. In
place thereof the State of Rajasthan is
restrained from enforcing the impugned Notification till 31st May, 1970 with the clarification that the
enhancement as per the said Notification authorising collection of levy at
Rs.1.25 per tonne would be enforceable with effect from June 1, 1970 onwards. Such amount as remains to
be recovered in the light of this Judgment will have to be paid by the Writ
petitioners on or before September
30, 1989. On failure
of the Writ Petitioners to do so the appellant will be entitled to recover from
them the sum representing the difference between the sum recoverable as per
this Judgment and the sum Paid by the Writ Petitioners. We substitute the order
in the 470 aforesaid terms in place of the order passed by the High Court which
we have set aside The appeals are partly allowed accordingly. There will be no
order regarding costs throughout.
G.N.
Appeals allowed.
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