JUDGMENT
Narendra Mohan Kasliwal, J.
1. This case has been referred to the Full Bench by the learned Single Judge by his order dated August 28, 1984, in S.B. Civil Writ Petition No. 1131 of 1976. The learned Single Judge has framed the following questions for being decided by the larger Bench:
1. Whether Section 21(5) of the Mines and Mineral (Regulation & Development) Act, 1957, has any restrospective operation ?
2. Whether Rule 64 of the Rajasthan Minor Mineral Concession Rules of 1959 as amended with effect from 13th January, 1972, has retrospective operation ?
2. In order to decide the above questions of law, it would be necessary to state the fact of the case.
3. The petitioner had taken a lease of sand-stone quarry through an auction in village Gurda, Tehsil Karauli District Sawaimadhopur on July 26, 1968, from the Mining Department. The dead rent was fixed at Rs. 1,40,101/-. The lease deed was executed and signed by the petitioner and by the Joint Director of Mines and Geology on behalf of the State of Rajasthan.
4. It appears that the possession over the area was taken by the petitioner after the execution of the aforesaid lease deed, but some dispute arose regarding the demarcation of the area as certain other persons also but forth their claims over the leased area given to the petitioner. The petitioner, as such, surrendered the leased area and the Senior Mines Foreman, Hindaun, took possession of leased area on February 4, 1970. The petitioner was there after served with a demand notice dated March 11, 1970 for the payment of Rs. l,62,907.20p. by way of dead rent, penalty and interest due upto February 4, 1970. The petitioner challenged the above demand by filing a writ petition No. 2268/70 on number of grounds. The writ petition was allowed by an order of learned Single Judge dated January 17, 1973 simply on the ground that the Joint Director Mines and Geology was not authorised by the Government to put his signatures on the agreement and as a consequence of which the lease agreement between the State Government and the petitioner was held to be invalid. It was also held that on the basis of such invalid agreement of lease, the State Government could not have imposed any penalty and to raise any demand against the petitioner treating him as a lease under the Rajasthan Minor Mineral Concession Rules, 1959(here in after referred to as ‘the Rules’). The demand notice dated March 11, 1970 for the payment of Rs. 1,62,907.20 was, therefore, quashed.
5. The Assistant Mining Engineer (Recovery) Sawai Madhopur again served the petitioner with a notice dated June 5, 1976 (Annexure 2) for making a payment of Rs. 7,97,556.30p., being ten times the amount of royalty and to make the payment of the aforesaid amount within 15 days. The petitioner filed the present writ petition challenging the aforesaid notice Annexure 2.
6. The case of the petitioner as alleged in the writ petition was that the petitioner had taken only one lease of sand-stone quarry in village Gurda on July 26, 1968 and in respect of which a demand for Rs. 7,62,907.20p. was raised inclusive of the dead-rent, penalty and interest and the said demand was quashed in writ petition No. 2268/70 by order dated January 17, 1973. It was further alleged that the respondents had no authority to create any fresh demand for Rs. 7,97,556.30 on the basis of 10 times of the amount of royalty for the same leased area.
7. The respondents in reply to the writ petition submitted that it was correct that the possession was taken by the Senior Mines Foreman Hindaun, on February 5, 1970. Upto that date, the petitioner was excavating the mines. He had submitted regular returns duly signed by him to the Assistant Mining Engineer, Sawai Madhopur. Copies of the returns have been submitted and marked as Annexures R1 to R10. It was further submitted that from a perusal of the returns it was clear that the petitioner had excavated in area measuring 7,887.435 C. metres and had sold the goods. The earlier writ petition No. 2268/70 was allowed merely on the ground that the lease deed was not executed by a duly authorised person on behalf of the State Government. It has been further alleged in the reply that the respondents were not recovering rent-cum-royalty, dead-rent, surface rent or royalty, but were recovering the value of the minor mineral excavated by the petitioner. The earlier judgment in the writ petition No. 2268/70 was only in respect of dead rent and royalty. The respondents have made the present demand of Rs. 7,97,556.30 under the provisions of Rule 64 of the Rules which reads as under:
Not with standing anything contained in these Rules, who so ever excavates, removes or uses mineral or on whose behalf such excavation or removal or use is made without obtaining Mining Lease, Rent-cum-Royalty lease or short term permit granted under these Rules, shall be liable to pay the value of the mineral excavated, or removed or used. The value of the mineral shall be deemed to be 10 times the highest amount of royalty payable as per Schedule I of these Rules.
It has thus been alleged that a persual of the above Rule clearly showed that if any person excavated, removed or used mineral without a Mining Lease, was liable to pay the value of the mineral excavated or removed or used. The value of such mineral has to be calculated at 10 times the highest amount of royalty payable as per Schedule I of these Rules. It has thus been alleged that from a perusal of the return submitted by the petitioner to the Assistant Engineer, it was established that the petitioner had excavated minerals from area measuring 7,887.435 C. metres during the period December 16, 1968 to February 4, 1972 and as per Schedule I of the Rules of the value of the mineral in accordance with the provisions of Rule 64 comes to Rs. 8,67,612.30. As the amount of Rs. 70,056.00 was deposited by the petitioner, that amount has been deducted out of the total value of the minerals and the remaining amount is being recovered in accordance with the provisions of Rule 55 of the Rules read with Section 256 of the Rajasthan Land Revenue Act, 1956. It may be mentioned at this stage that the period during which the petitioner excavated the minerals, has been mentioned from December 16, 1968 to February 4, 1972 in para 9(iii) of reply to the writ petition while in Annexures R1 to R10 the period has been mentioned as December 16, 1968 to February 5, 1970. This shows that the period during which the minerals have been excavated is from Dec. 16, 1968 to Feb. 4,1970 during which the area remained in the possession of the petitioner & Feb. 4, 1972, has been wrongly mentioned in the reply and it ought to have been February 4, 1970. It has been further submitted in the reply that the petitioner had himself submitted the returns and in some of the returns he had mentioned the sale price of the minerals excavated by him. In some returns where the sale price has not been mentioned the price has been calculated on the basis of the sale-price mentioned in other returns. The petitioner cannot blow hot and cold at the same time, when a demand was made on the earlier occasion, the petitioner challenged the validity of the lease and denied the right, of the State to realise the royalty, dead rent and penalty and took the position that whatever mineral he excavated was without a contract and as such the law relating to the realisation of royalty, penalty and dead rent did not apply. The said contention of the petitioner had to be accepted by the State in view of the earlier decision in the Writ Petition 2268/70 and as such the State is not realising royalty, dead-rent or penalty but is now realising the value of the minerals excavated by the petitioner.
8. The controversy which arose before the learned Single Judge was that Rule 64 of the Rules came into force on January 13, 1972, which was made within the rule making authority given to the State Government under Section 15 of the Mines and Minerals (Regulations and Development) Act, 1957 (here in after referred to as ‘the Act’). The contention raised by learned counsel for the respondents before the learned Single Judge was that the provisions of Rule 64 and Section 21(5) of the Act were retrospective in operation and as such were applicable to the period in question. Learned counsel for the respondent had placed reliance in support of his arguments before the learned Single Judge on Nemi Chand v. State of Rajasthan 1977 RLW 430, and State of Rajasthan v. Jehta Nand Devan Das 1978 WLN 688. The learned Single Judge in this regard observed as under:
It is argued by Mr. Sharma on the basis of this Court’s judgment reported in State of Rajasthan v. Jetha Nand Devan Das and Nemi Chand v. State of Rajasthan that the Section 21(5) of the Mines and Minerals (Regulation and Development) Act, 1957, which came into force in the year 1972 is retrospective in operation and, therefore, the penalties provided under Section 21 will be imposable on any person who comes in the mischief of Section 21 of Mines and Minerals (Regulation and Development) Act, 1957. This judgment, inter alia, held that Section 21(5) is retrospective in operation. As is known that the punishing Section or penalty Section is generally prospective and is not retrospective. As I have said Rule 64 of the Rajasthan Mines and Minerals (Regulation and Development) Act, 1957 as amended in 1972 by Act of 56 of 1972, was not in existence at the relevant time that the alleged breach or violation of Rule 64 and for that matter this Section 21(5) of the Act cannot be fastened on the petitioner. Violation admittedly was after 1968 and before 4th November, 1972. It is difficult for me to agree with the Hon’ble Judges the view taken that Section 21(5) of the Act is retrospective in operation. I am of the view that unless Section 21(5) is retrospective in operation and Rule 64 of the Rajasthan Minor Mineral Concession Rules as amended with effect from 1972, is also retrospective, no recovery of the amount which is due before that date, at the rate as mentioned in the Schedule read with.the Rules can be made. It appears to me unless statute gives the power of making rule to be applicable retrospectively, as such retrospective operation cannot be read into it.
In Baijnath Kedia v. The State of Bihar and Ors. and the Bihar Mines Ltd. v. The Union of India and Ors. , the Supreme Court inter alia held that the Rule Making Authority has no power to give effect to a rule retrospectively unless the Statute itself gives the powers to make rule retrospectively. As I read Section 15 of the Act, in my opinion, Statute does not give any power to the Rule Making Authority to promulgate rules with retrospective effect. In my opinion, therefore, the Rule 64 cannot be applied before 13th January, 1972 and Section 21(5) of the Mines and Minerals (Regulation and Development) Act, 1957 in terms cannot apply and in any case cannot have retrospective operation.
9. Learned Single Judge in view of the above circumstances has referred the above mentioned two questions for decision by the larger Bench.
10. It may be mentioned at the out-set that we are not concerned with the correctness of the amount of Rs. 7,97,556.30p. raised by notice Annexure 2 nor with the question of reasonableness of such demand calculated on the basis of 10 times the amount of royalty. Learned counsel for both the parties before us submitted that this Court should restrict its decision on the questions of law referred to us and not regarding the quantum of the demand raised against the petitioner.
11. Mr. Mehta, learned counsel for the petitioner, submitted that the language of Rule 64 of the Rules as well as Section 21(5) of the Act is not retrospective in operation. It was submitted that it was well settled rule of interpretation that vested rights cannot be taken away unless it is clearly spelt out from the language of the statute. It was further argued that the provisions of Rule 64 of the Rules and Section 21(5) of the Act were penal in character and as such cannot have any retrospective operation. Reliance in support of the above submission was made on Baijnath Kedia’s case (3), Nihal Singh Bhajan Singh v. State of Punjab and Ors. , Punjab Tin Supply Co. Chandigarh v. Central Government and Ors. and A.A. Calton v. The Director of Education and Anr. .
12. It was also argued by Mr. Mehta that the State Government is only a delegated authority to make Rules under Section 15 of the Act. Under Section 15 of the Act the State Government is not empowered to promulgate Rules with retrospective effect. In view of these circumstances also Rule 64 of the Rules could not have been made retrospectively by the State Government. Reliance in this regard is placed on M.L. Bagga v. C. Murhar Rao AIR 1956 Hyd. 35, Income Tax Officer, Alleppey v. L.M.C. Ponnoose and Ors. , Income Tax Officer, Alleppey v. M.C. Ponnoose and Ors. , Baij Naih Kedia‘s case (supra) and The Bihar Mines Ltd. v. The Union of India and Ors. .
13. On the other hand, Mr. Sharma, appearing for the respondents submitted that the term ‘retrospective operation’ is an inaccurate term causing confusion. The provision contained in Rule 64 of the Rules does not create any new liability. Any person, who excavated or carried any mineral from within the land belonging to the Government without obtaining mining lease in his favour, he was liable to pay the value of the mineral excavated or removed or used by him and there is no question of effecting any vested right in such a case. The provisions contained in Rule 64 of the Rules and Section 21(5) of the Act have enacted for the benefit of the community and also of individuals and being a remedial provision will relate to a time antecedent to their commencement. It was further submitted that these provisions were purely procedural made for the purpose of recovery of the price of the mineral taken out otherwise than by virtue of any valid grant or lease. Thus, the above provisions enable the State Government to recover the price of the minerals excavated even before the introduction of these provisions. It was further argued by Mr. Sharma that in deciding the question of applicability of a particular statute to past events the language used is, no doubt, the most important factor to be taken into account, but it cannot be stated as an inflexible rule that use of present tense or present perfect tense may be decisive of the matter that the statute does not draw upon past events for its operations. It was also argued that when a Statute is passed with the object of protecting the public against some evil or abuse it can be allowed to operate retrospectively. For the retrospective operation of the provision of an Act it is not necessary that it must be stated that its provision would be deemed to have always existed. Retrospective effect can also be gathered from the language of the enactment and the object and intent of the legislature in enacting it. It was also submitted by Mr. Sharma that under Section 15 of the Act, full power has been given to the State Government to make Rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for the purpose connected therewith. The above power as such embraces the power to make rules retrospectively. In this connection Mr. Sharma placed reliance on Lala Duni Chand and Ors. v. Mst. Anar Kali and Ors. AIR 1946 PC 173, State of Bombay v. Vishnu Ramchandra , Dr. Indarmani Pyarelal Gupta and Ors. v. East India Cotton Association Ltd. an W.R. Nathu and Ors. , Mst. Rafiquennessa v. Lal Bahadur Chetri and Ors. , J.N. Sharma and Anr. v. H.H. Vijaykuverba and Anr. , Sree Bank Ltd. v. Sarkar Dutt Roy and Co. , Mr. Boucher Pierce Andre v. Superintendent Central Jail Tihar New Delhi and Anr. , New India Sugar Works etc. v. State of Uttar Pradesh and Ors. , D.S. Nakra and Ors. v. Union of India , Nemi Chand’s case (supra) and Jethanand Devon Das’s case (supra).
14. We have given our careful consideration to the arguments advanced by learned counsel for both the parties and have thoroughly perused the record.
15. There can be no manner of dispute that the minerals are the property of the Government and belonged to the State. Section 89 of the Rajasthan Land Revenue Act, 1956, clearly provides that the right to all minerals, mines, and quarries, shall vest in the State Government and the State Government shall have all powers necessary. Sub-section (7) of Section 89 of the Land Revenue Act provides that:
Any person who without lawful authority extract or removes minerals from any mines or quarry, the right to which vests in and has been assigned by the State Govt., shall without prejudice to any other action that may be taken against him, be liable on the order in writing of the Collector to pay a penalty not exceeding a sum calculated @ fifty rupees per ton, or a fraction thereof of the minerals so extracted or removed.
16. This power is in addition to the powers conferred on the State Government under Rule 64 of the Rules and Section 21(5) of the Act. Therefore, even when there was no provision in the Rules or in the Act like Rule 64 or Section 21(5), the State Government was entitled to recover in respect of the mineral excavated without any grant, under the provisions of law of contract and action could also be taken by the Collector under Section 89 of the Rajasthan Land Revenue Act. Rule 64 of the Rules as such does not create any new liability because a person, who excavates or carries out any mineral belonging to the State, without any grant in his favour is supposed to pay the price of such mineral. There is no question of any vested right in favour of such a person and we see no force in the arguments of the learned counsel for the petitioner that the provisions of Rule 64 of the Rules or Section 21(5) of the Act have taken away any vested fight of the petitioner. These provisions are also not penal in character as the same only empowered the State Government to realise the prices of such minerals, which has been calculated at 10 times the amount of royalty. We are not concerned with the calculation of the prices made in the above manner and we are only concerned with the question whether the above provisions apply retrospectively or not.
17. Section 21(5) of the Act reads as under:
When ever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or whose such mineral has already been disposed of, the price thereof, and may also recover from such person, rent royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
18. The above provision is a remedial provision authorising the State to effect recovery of the price of the minerals unauthorisedly excavated. The object behind the above provision is to provide remedy for recovery of the price of the minerals, which belonged to the State and whose price such person was bound to pay to the State. Prior to these provisions, there was no provision for making recovery either under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Rajasthan Minor Minerals Concession Rules. In order to remedy this lacuna Sub-section (5) to Section 21 was inserted in the Act. It has been contended by Mr. Mehta learned counsel for the petitioner that the words ‘whenever any person raises’ occurring in Sub-section (5) of Section 21 of the Act can only apply prospectively and can not govern the past liability. We do not find any force in the above contention. The expression ‘whenever any person raises’ inserted by Sub-section (5) of Section 21 of the Act when considered in the context and background of the above legislation can leave no manner of doubt that it was intended to govern the past liabilities also. The plain language of Sub-section (5) of Section 21 also makes it clear that where such mineral has already been disposed of, the price thereof can also be recovered by the State Government. The object of the remedial Act is to fill up the lacuna or to over-come the omissions with a view to provide remedy under the Act which was not available under the Act although the liability was there.
19. It may be further mentioned that there is no magic in putting unnecessary emphasis on the term ‘retrospective operation’ which only creates confusion. The clear case of retrospective laws are those in which the date of commencement is mentioned as earlier than such enactment or which validate some invalid law. Otherwise, every Statute affects rights which would have been in existence but for the Statute and a Statute does not become a retrospective one because a part of the requisites for its action is drawn from a time antecedent to its passing. It is well settled that save in cases where the law creates a new offence or increases a penalty, legislature is not prevented from enacting an expost facto law. However if such law takes away or impairs any vested right acquired under an existing law or creates a new obligation, or impose a new duty, or attaches a new disability in respect of the transactions already closed, it will have to be provided in express terms in the language of the Statute and the intention can also be gathered by necessary implication. Further where a law is enacted for the benefit of the community and also of individuals, the same may relate to a time antecedent to its commencement. In Mr. Bouhcer Pierrs Andre’s case (supra) while construing the provision of Section 428 Cr.P.C. their Lordships of the Supreme Court observed as under:
Section 428 embraces cases where a person has been convicted before the coming into force of the new Criminal P.C. but his sentence is still running at the date when the new Code of Criminal Procedure came into force. Section 428 on a plain natural construction of its language, points for its applicability a factual situation which is described by the clause “where an accused person has, on conviction, been sentenced to imprisonment for a term, and he would be entitled to claim under Section 428 that the period of detention under gone by him during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him and he should be required to under go only the remainder of the term.
20. In New India Sagar Works’ case (supra) it was submitted that in the Uttar Pradesh cases the order impugned imposing a levy on the Khandsari produced by the petitioners cannot have any retrospective operation so as to apply to the stock of sugar manufactured prior to the date of the order and would apply only to the sugar products after coming into force of the impugned Notification. Their Lordships of the Supreme Court negatived the above contention and observed as under:
So far as this argument is concerned, we find no substance in the same because it is not a question of retrospectivity of the Statute but it is actual working. Once the Notification imposing the levy was made it will obviously apply to stock of Khandsari produced by the petitioners either before or after the order. The following observations made by Gajendragadkar, J. in Trimbak Damodhar Rajpurkar v. Assaram Hiraman Patil were recorded with approval:
In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included.
21. In Sree Bank Ltd.’s case (supra), the provisions of subSection (1) of Section 450 of the Banking Companies (Amendment) Act, 1953 introduced on December 30, 1953 in the Banking Companies Act, 1949, came up for consideration their Lordships of the Supreme Court observed as under:
The next question as to whether Section 45-O(1) has a retrospective operation is of real difficulty. Having given the matter my most anxious consideration, it seems to me that the better view would be to hold that it has such an operation. The general rule no doubt is, as was stated by Wright, J. in In re, Athlumney: Ex Parte, Wilson 1898-2 QB 547 at pp. 551-552,
Perhaps no rule of construction is more firmly established than this–that a retrospective operation is not to be given to a statute so as-to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only”. It can no doubt be argued with force that no violence will be done to the language used in subSection (1) of Section 45-0 if it is read as applying only to cases where the right to apply has not become barred at the date of its enactment. But there are other considerations.
Two reasons have operated on my mind to lead me to the conclusion that the general rule should not be applied in the present case. First, it is recognised that the general rule is not invariable and that it is a sound principle in considering whether the intention was that the general rule should not be applied, to “look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the Legislature contemplated”.: See Pardo v. Bingham, (1869) Statute Law, 6th Ed., it is stated as p. 395.
If a Statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively although by such operation it will deprive some person or persons of a vested right.
To the same effect is the observation in Halsbury’s Law of England 3rd Ed. Volume 36, p. 425. This seems to me to be plain common sense. In ascertaining the intention of the legislature it is certainly relevant to enquire what the Act aimed to achieve. In (1869)4 Chapter, Article 735, a statue which took away the benefit of a longer period of limitation for a suit provided by an earlier Act was held to have retrospective operation or otherwise, it would not have any operation for fifty years or more in the case of persons who were at the time of its passing residing beyond the seas. It was thought that such an extra-ordinary result could not have been intended. In R. v. Vine (1875) 10 QB 195, the word’s “Every person convicted of felony shall for ever be disqualified from selling spirits by retail… and if any person shall, after having been so convicted, take out or have any licence to sell spirits by retail, the same shall be void to all intents and purposes” were applied to a person, who had been convicted of felony before the Act was passed though by doing, so vested rights were affected. Mellor. J. observed (pp. 200-201).
It appears to me be the general object of this Statute that there should be restraints as to the persons who should be qualified to hold licences, not as a punishment, but for the public good, upon the ground of character… A man convicted before the Act passed is quite as much tainted as a man convicted after; and it appears to me not only the possible but the natural interpretation of the Section that any one convicted of felony shall be ipso facto disqualified, and the licence, if granted, void.
22. In J.N. Sharma’s case (supra), the expression “where a person dies” used in Sub-section (1) of Section 18 of the Expenditure Tax Act, 1957, came up for consideration. An argument before the Supreme Court was raised by counsel for the respondent that it was open to the Parliament to use adequate pharaseology, such as, “dies whether before or after passing of the Act” and the Parliament having not done so, it must be deemed to have accepted the interpretation placed by the Bombay High Court in Income-tax Commissioner, Bombay v. D.N. Mehta: AIR 1935 Bombay 167 and to have evinced an intention not to render the estate of the person, who died before the date on which the Act was brought into force liable to Expenditure Tax. The Supreme Court negatived the aforesaid contention of respondent and observed as under:
We are unable to agree with this contention. The expression ”where a person dies” standing by itself in Section 18 does not suggest that there by it was intended to refer only to death of the person liable after the Act was brought into force and read with the remaining clauses in the context of Sub-sections (2) and (3) it is clear that the Parliament intended to attract the entire charge to tax and machinery prescribed by Sections 13 and 15 so as to render the estate of a person dying before the Act liable to satisfy the tax or other liability which could have been assessed or imposed upon him if he had not died. In the context of the declared liability under Sub-section (1) and the provisions of Sub-section (3) of Section 18, which make Sections 13, 14, and 15 of the Expenditure Tax Act applicable to the executor, administrator or legal representative, as they apply to any person, it would be difficult to hold that the Legislature has not expressed its intention clearly so as to render tfye estate of a deceased person liable to be assessed to expenditure tax merely because he had died before the date on which the Act was brought into force.
23. In P.S. Nakara’s case (supra) their Lordships of the Supreme Court while dealing with the question of the applicability of the liberalised pension formula observed as under: in para 46 of the report:
A statute is not properly called a restrictive statute because a part of the requisites for its action is drawn from a time antecedent to its passing. (See Craies on Statute Law, VI Edition Page 387).
24. Apart from the above weighty observations made by their Lordships of the Supreme Court in the cases referred to above, we find support of the view taken by us from Nemi Chand’s case (supra) a decision of the learned Single Judge of this Court and Jethanand Devon Das’s case (supra) a decision of the Division Bench of this Court.
25. We shall now discues the authority cited by learned counsel for the petitioner.
26. In Baijnath Kedia’s case (supra), it was held that the legislative field in relation to minor minerals had been with drawn from the State Legislature by the enactment of the Mines and Minerals (Regulations and Development) Act, 1957, 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. As no such parliamentary law has been passed the second Sub-rule to Rule 20 was ineffective. It could not derive sustenance from the second proviso to Section 10(2) of the Bihar Land Reforms Act, since that proviso was not validly enacted.
27. The above case was based on the validity of the provisions which were applicable in the State of Bihar and as such have no relevance with the questions raised before us in the present case. The Bihar State Legislature had amended the Bihar Land Reforms Act by Act 4 of 1965 after coming into force of Mines and Minerals'(Regulations and Development) Act (67 of 1957), and it was held that the declaration in the later Act would carve out a field to the extent provided in that Act and to that extent Entry 23 of the State List of the Constitution would stand cut down. It was further held that the pith and substance of the amendment to Section 10 of the Bihar Land Reforms Act fall within Entry 23 of the State List although incidentally touches the land and not vice versa. Therefore, this amendment was subject to the over-riding power of the Parliament as declared under Act 67 of 1957 in Section 15.
28. In Nihai Singh Bhajan Singh’s case (supra), the learned Single Judge of the Punjab & Haryana High Court held that the provisions of Section 21(5) of the Act were not retrospective. It was observed as under:
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 Amar Singh Modi Lal’s case ILR (1971) 2 Punjab and Haryana 304: AIR 1972 Punjab and Haryana 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 disagree. 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 any 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 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 be 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 any person raised” 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.
We respectfully disagree with the view taken in the above case and for the detailed reasons already given in the earlier part of our judgment. We are unable to agree with the reason given by Balraj Tuli, J. of the Punjab and Haryana High Court that the verb “raises” does not refer to the mineral raised from any land prior to the coming into force of the Act.
29. In A.A. Colton’s case (supra), it was held that no retrospective effect should be given to any statutory provision so as to empower or take away an existing right unless the Statute either expressly or by necessary implication directs that it should have such retrospective effect.
30. In Punjab Tin Supply Co. Chandigarh’s case (supra), it was held, that all laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the Court has to decide whether in the light of surrounding circumstances retrospective effect should be given to it or not.
31. The above observations on which the learned counsel for the petitioner has placed reliance render no assistance in the present case. We have already discussed in detail that the provisions in question are remedial in nature and do not take away any vested or even existing right of the petitioner. On the contrary, the petitioner had an obligation to pay the price of the minerals excavated by him and by the impugned provisions a remedy has been given to the State Government for realising the price of such minerals.
32. Reliance is placed on the following observations made in M.L. Bagga’s case (supra):
In our opinion, the rule making authority does not possess plenary power to give the subordinate delegated legislation retrospective operation, unless and until, that power is expressly conferred by parent enactment.
33. There can be no manner of dispute in the proposition of law enunciated in the above observations. However, the position before us is entirely different so far as Section 21(5) of the Act is concerned, it is a provision made by the Legislature itself and there is no question of conferring any power on the subordinate or delegated legislation. That apart, as already discussed by us there is no use in laying emphasis on the words ‘retrospective operation’ as the same creates confusion and the right course would be to find out as to what was the defect or mischief for which a particular enactment was amended and whether the same was made for the benefit of the community or the individual and full meaning and scope should be given to the words used in such enactment. Thereafter, it can be found whether such law shall apply to past transactions or only to future transactions.
34. In M.C. Ponnoose’s case (supra), is a case in which it was held that unless a power to act retrospectively has been expressly conferred by the Legislature on the executive government exercising subordinate and delegated legislative powers, it cannot act retrospectively. An appeal against the aforesaid decision was filed in Supreme Court and the appeal was dismissed. The decision of the Supreme Court has been reported in the Income-tax Officer Allepay’s(supra). The Supreme Court observed as under in the above case:
It is open to a sovereign legislature to enact laws which have retrospective operation. The Courts will not ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delagated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in expreses terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect.
35. As already discussed above the provision of Section 21(5) of the Act has been made by the Legislature within its competence and there is no question of any law made by any subordinate or delegated legislative authority so far as Section 21 of the Act is concerned.
36. Mr. Mehta also placed reliance on a Supreme Court decision in Brij Monan v. Commissioner of Income Tax, New Delhi . It was held in the above case that when penalty is imposed for the concealment of particulars of income, it is the law ruling at the date on which the act of concealment took place which is relevant. It was wholly immaterial that the income concealed was to be assessed in relation to an assessment year in the past. The above case does not at all lend any assistance to the petitioner in the controversy raised before us.
37. In Principles of Statutory Interpretarion by G.P. Singh, 3rd Ed. at page 358 under the Head ‘Statutes conferring prospective benefit on antecedent facts–Remedial Statutes it has been mentioned as under:
Just as the fact that a prospective disqualification under a statute results from anterior misconduct, is not always taken as sufficient to make the statute retrospective, so also the fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective. Cases under these heads illustrate that the rule against retrospective construction is not always applicable to a statute merely “because a part of the requisites for its action is drawn from time antecedent to its passing.
38. Learned Single Judge has placed reliance on The Bihar Mines Ltd. v. Union of India and Baij Nath Kedia’s case (supra) and observed that Rule 64 could not be applied before January 13, 1972 and Section 15 of the Act did not give any power to the rule making authority to promulgate rules with retrospective effect. For Section 21(5) of the Act was penal in character, and punishing Section or penalty Section is generally prospective and is not retrespective. It is no doubt true that the heading of Section 21 is “penalty” but it appears that sub-ss. (3),(4) & (5) of Section 21 were inserted vide Amendment Act No. 56 of 1972 from Sept. 13, 1972. Thus, so far as sub-ss. (1) and (2) of Section 21 are concerned, they certainly provide for imprisonment and fine and as such are penal in character but Sub-sections (3) to (5) cannot be said to be penal merely because they have been inserted in Section 21 whose heading is penalties. A penalty is a punishment pecuniary or otherwise inflicted upon a person, who is proved to be guilty of violation of any provision of law, rule or regulation or for an offence. Sub-section (3) only provides that if a person trespasses into any land in contravention of the provisions of subSection (1) of Section 4, such trespasser may be served with an order of conviction by the State Government or such authority authorised in this behalf by the Government & the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. Sub-section (4) provides that whenever any person raises without any lawful authority any mineral from any land and for that purpose, brings on the land any tool, equipment, vehicle, or any other thing such mineral, tool, equipment, vehicle or other thing shall be liable to be seized by a Magistrate specially empowered in this behalf. Thereafter is Sub-section (5) which has already been quoted above. Thus, the scheme of all the provisions contained in Sub-sections (3) to (5) of Section 21 inserted in 1972 is of remedial in nature against the trespasser or person having raised any mineral from the government land without lawful authority. So far as Section 21(5) is concerned, it is not at all penal nor takes away any vested right of any person but allowed the State Government for being compensated for the minerals excavated by any person without lawful authority. It is a matter of common experience that long time is spent in having recourse through ordinary civil courts. Mineral resources have a huge potential in the economy of the State and is very important for the revenue of the State and in these circumstances the Legislature in its wisdom thought it proper that the prices of the mineral excavated by trespassers or unauthorised persons may be realised as arrears of Land Revenue. This, being the object of this Legislation the same cannot be said to be penal or taking away any vested right of a person but is only compensatory or remedial in nature. Learned Single Judge as such in our view wrongly considered these provisions as penal or taking away the vested rights of the petitioner and the rules of interpretation in respect of such enactments cannot be applied in the present case.
39. We may also consider in short the contentions raised by learned counsel for the petitioner so far as Rule 64 is concerned. A major part of the argument regarding the retrospective operation of this rule was based on the same reasoning as was made for Section 21(5) of the Act and it would be unnecessary to repeat the same. A further argument has been raised with regard to Rule 64 that it is a product of subordinate legislation as the same has been made by the State Government in exercise of its powers conferred under Section 15 of the Act and being a delegated authority, such rule cannot be made retrospective. A short answer to the above argument is that Rule 64 also does not create any new liability and the language used in the Rule clearly covers such cases where minerals might have been excavated without lawful authority prior to the coming into force of this rule on January 13, 1972. Under Section 15 of the Act the State Government is authorised to make rules not only for regulating the grant of quarry leases, mining leases or other mineral concessions but also in respect of minor minerals and for the purpose connected therewith. We see no force in any objections raised by the learned counsel for the petitioner that under this provision the State Government is not authorised to frame Rule 64. When a rule is made in respect of minor minerals for the purpose connected there with, the State Government is also empowered to make rule for recovery of prices of any minor mineral excavated without lawful authority from the government land. It also empowers the State Government to make a provision for recovering the price of such minerals which might have already been taken away by a person in an unlawful manner, i.e., prior to January 13, 1972, if such remedy is not barred or prohibited by any other rule or law. It is a remedy provided under Rule 64 for future course of action and there is no question of the same being retrospective in operation as sought to be contended by the learned counsel for the petitioner.
40. In the result, we answer both the questions referred to above, in the affirmative, and it is held that both Section 21(5) of the Mines and Minerals (Regulations and Development) Act as well as Rule 64 of the Rajasthan Minor Mineral Concession Rules, 1959 as amended with effect from January 13, 1972 are retrospective in operation.
Mahendra Bhushan Sharma, J.
41. I have gone through the judgment proposed by Hon’ble Kasliwal, J. Though I have my own reservations whether Sub-section (3 and 4) of Section 21 of the Mines and Minerals (Regulation and Development) Act, 1957 (67/57) (for short, the Act) are penal in nature or not, but I generally agree with the view expressed by him on the two questions of law referred by the learned Single Judge to the larger Bench. However, I will like to add my views.
42. The two questions of law framed by the learned Single Judge and referred to the larger Bench for its opinion have been extracted by brother (Hon’ble Kasliwal, J.). He has also given the facts of the case in detail, and, therefore, I will straight away proceed to deal with the two questions referred to us for opinion.
43. The answer to the two questions depends upon the construction of Section 21(5) of the Act and of Rule 64 of the Rajasthan Minor Mineral Concession Rules, 1959 (for short, RMMC Rules here in after). They read as under:
44. Section 21(5):
Whenever any person raises without any lawful authority, any mineral from any land, the State Government may 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, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
Rule 64 of RMMC Rules:
Not with standing any thing contained in these rules, who so ever excavates, removes or uses mineral or on whose behalf such excavation or removal or use is made without obtaining Mining Lease, Rent-cum-Royalty lease or short term permit granted under thsese rules shall be liable to the value of the mineral excavated or removed or used. The value of the mineral shall be deemed to be 10 times the highest amount of royalty payable as per Schedule I of these rules.
45. The contention of Mr. S.N. Mehta, learned counsel for the petitioner is that the demand of Rs. 7,97,556.30 under Rule 64 of the RMMC Rules read with Schedule I of these rules relates to the period December 16, 1968 to February 4, 1970 when Sub-section (5) of Section 21 of the Act was not on the statute book. It was only inserted on 12th September, 1972 vide Section 12(1) of the Mines & Minerals (Regulation and Development) Amendment Act, 1972 (here in after referred to as the Act of 1972). Section 21 of the Act deals with the penalties and, therefore, according to Mr. Mehta, learned counsel for the petitioner, Sub-section (5) of Section 21 of the Act is prospective and not retrospective. He has laid emphasis on the expression “whenever any person raises” used in the beginning of Sub-section (5) of Section 21 of the Act. He submits that from the language used in Sub-section (5) of Section 21 of the Act it is clear that it is not retrospective & will not apply to such persons who had already raised any mineral from any land without lawful authority. He has made a reference to the general rule of construction of statute that where a statute alters rights of persons, or takes away such vested rights, or creates fresh liabilities in regard to persons, or imposes obligations upon persons and thereby alters the law, such statute ought not to be held to be retroactive or retrospective in its operation unless the words are clear, precise and quite free from ambiguity. So, according to him, Sub-section (5) of Section 21 of the Act has created new liability under the Act, a liability which did not exist earlier, and, therefore, is prospective and not retrospective. A similar argument has been advanced by Mr. Mehta, learned counsel for the petitioner, with regard to Rule 64 of the RMMC Rules, which too was added vide Rajasthan Gazette Part IV (Ga)(1) dated 13-1-1972 (page 416) (139). In addition to this argument in relation to Rule 54 of the RMMC Rules it is also contended by Mr. Mehta, learned counsel for the petitioner, that there was no provision in the Act conferring powers on the State Government to make rules in relation to minor minerals with retrospective effect and in the absence of any such provision in the Act no retrospective effect can be given to Rule 64 of the RMMC Rules. In support of his contentions, Mr. Mehta, learned counsel for the petitioner has placed on AIR 1970 1436 Baijnath Kedia v. State of Bihar AIR 1975 Punjab Nihal Singh Bhajan Singh v. State of Punjab and Ors. Tin Supply Company Chandigarh v. Central Government and Ors. A.A. Calton v. The Director of Education and Anr. AIR 1956 Hyd. 35 M.M.L. Bagga v. C. Murhar Rao, The Income-tax Officer Allppay v. L.M.C. Pannoose and Ors., The Bihar Mines Limited v. The Union of India and Ors.
46. Mr. K.K. Sharma learned counsel for the respondents, on the other hand, has contended that it is not correct to apply the term ‘retrospective’ to either Sections 21(5) of the Act or to Rule 64 of the RMMC Rules. According to him, the question of the above mentioned two provisions being retrospective does not arise merely because they take into their fold Sections which had already taken place. According to the learned counsel Shri Sharma all minerals are the property of the Government and belong to the State and in this connection he has made a reference to Section 69 of the Rajasthan Land Revenue Act. He contends that any person who without lawful authority excavates mineral is liable to pay its price to its owner, the State Government. Therefore, the liability to make payment of the price of mineral by such person who unlawfully excavated mineral was already existing and what Sub-section (5) of Section 21 of the Act as well as Rule 64 of the RMMC Rules provided was to provide an additional machinery for the recovery of the price of the mineral so excavated. Therefore, Sub-section (5) of Section 21 of the Act as well as Rule 64 of the RMMC Rules were remedial in nature and such provisions are procedural and, therefore, will even govern such cases where the mineral had been excavated prior to the year 1972. He further contends that the rule making power is vested in the Government so far as Minor Minerals are concerned, and under Section 15 of the Act the State Govt. has the powers for making rules for regulating the grant of quarry leases, minor leases or other mineral concessions in respect of minor minerals and for the purpose connected therewith. Therefore, according to him under Section 15 of the Act the State Government has power to make rules with retrospective effect. In support of his above contentions Mr. Sharma learned counsel for the respondents has placed reliance on 1978 WLN 638 State of Rajasthan v. Jethanand Devandas, AIR 1961 5C 307 The State of Bombay v. Vishnu Ramchandra, (1941) 2 All ER 499 Director of Public Prosecutions v. Lamp, AIR 1946 PC 173 Lala Dulichand and Ors. Mst. Anar Kali and Ors. AIR 1928 PC 129 Municipal Council Sydney v. Troy B.P. Andre v. Superintendent Central Jail Mst. Rafiquennesa v. Lal Bahadur Chetri AIR 1968 SC 538 National Engineering Industries v. Workmen . New India Sugar Works v. State of U.P., (page 143 para 46) D.S. Nakara v. Union of India, Indramani v. W.R. Nath B.S. Vadera v. Union of India and (20) Corpus Juris Secundum (Vol. 82) (Para 416) “Remedial Statutes”.
47. Due consideration has been given by me to the above contentions raised by the learned Advocate for the petitioner as well as by the learned Advocate for the respondents, and I have also gone through the authorities referred to earlier, which have been cited on both the sides.
48. All minerals vest in the State Government and under a declaration under Section 2 of the Act the Union has taken under its control the regulation of mines and the development of minerals to the extent provided under the Act. By virtue of Section 4 of the Act no person shall undertake any prospecting or minor operations in any area except under and in accordance with the terms and conditions of a prospecting licence or as the case may be, the minor lease granted under the Act and the rules made there under. Section 15 confers powers on the State Government to make rules in respect of minor minerals for regulating the grant of quarry leases or minor leases or other mineral concessions and for purposes connected therewith. Any body who excavates a mineral without the lawful authority is liable to pay the price of the mineral to its owner, the State Government, in addition to the liability for the prosecution under the Act. It cannot, therefore, be disputed that so far as the petitioner is concerted, he having alleged to have excavated the minor mineral without any lawful authority is liable to pay its price to the State Government, the owner of the mineral. Mr. Mehta, learned counsel for the petitioner, does not dispute that the petitioner may be liable under common law for the price of any mineral excavated by him without any lawful authority, but his contention is that before Sub-section (5) of Section 21 of the Act was inserted on 12-9-1972 there was no provision in the Act empowering the State Government to recover from such person the price of the mineral so raised. Therefore, he submits that Sub-section (5) of Section 21 of the Act creates new obligations and cannot be held to be retrospective. In my opinion, there is no force in the contention of Mr. Mehta that Sub-section (5) of Section 21 of the Act creates new obligations or duties in as much as the liability to pay the price for any mineral raised without any lawful authority by any person was already existing and what Sub-section (5) of Section 21 of the Act provided is to provide a machinery for the recovery of the price of the mineral so raised. Therefore, the authorities referred to by Mr. Mehta learned counsel for the petitioner on the point that vested rights cannot be taken away unless it is clearly spelt out in the language of the statute have no application to the instant case.
49. So far as Sub-section (5) of Section 21 of the Act or Rule 64 of the RMMC Rules are concerned, to my mind it cannot be said that they are penal in nature. Merely because Sub-section (5) of Section 21 of the Act is in Section 21 which deals with penalties, it cannot be said that it is penal in nature. The history of Section 21 of the Act will show that its Sub-sections (1 and 2) were substituted by the Act of 1972, and subSections (3 to 5) were inserted by the same Section 12(11) of the Act of 1972. Sub-section (51 was inserted with a purpose so that if any minerals have been raised by any person without any lawful authority from any land, the same may be recovered, or where they have already been disposed of, the price thereof may also be recovered from such person alongwith rent, royalty etc., as arrears of land revenue under Section 25 of the Act. Sub-section (5) of Section 21 of the Act does not provide any penalty as such in as much as it does not make liable any person to any punishment. Punishment can only be either imprisonment and/or fine or forfeiture of property. It cannot be a recovery of the price of the mineral raised with out lawful authority by the person.
50. Merely because Sub-section (5) of Section 21 of the Act and Rule 64 of the RMMC Rules take into their fold an act which has already taken place, it cannot be said that they are retrospective in the sense that term is understood. No doubt, in the sense that they will apply to such of the cases where minerals had been raised before the above referred to Sub-section of Section 21 of the Act and Rule 64 of the RMMC Rules were brought on the statute book, it can be said that they are retrospective. Shri G.P. Singh in his book Principles of Statutory Interpretation (3rd Edition) page 358 has said, “Just as the fact that a prospective disqualification under a statute results from entire misconduct, is not always taken as sufficient to make the statute retrospective, so also the fact that a prospective benefit under a statutory provision is in certain cases to be measured by us depends on antecedent facts does not necessarily make the provision retrospective. Cases under these heads illustrate that the rule against retrospective construction is not always applicable to a statute “merely” because a part of the requisites for its action is drawn from time antecedent to its passing”. Again at page 361 (para 3) the author has said. “In deciding the question of applicability of a particular statute to past events, the language used is no doubt the most important factor to be taken into account but it cannot be stated as an inflexible rule that the use of present tense or present perfect tense is decisive of the matter that the statute does not draw upon past events for its operation”.
51. In the case of Jethanand Devandas (supra) a division Bench of this Court examined this question. It was held, “From a bare’ reading, of Section 21(5), it appears that it is a remedial provision authorising the State to effect recovery in regard to the minerals unauthorisedly excavated. The object behind the provision is to provide remedy for recovery against those who had unauthorisedly excavated the minerals”. It was also held that because there was no provision in the Act or the RMMC Rules for making recovery from a person who has raised minerals without lawful authority, to remedy the lacuna, Sub-section (5) of Section 21 of the Act was inserted. It has now been made possible to make recoveries. The learned Judge also observed that even if it is assumed not to be retrospective, it can be availed for the recovery of past dues from the reading of the plain language of that Section. In para 416 of Corpus Juris Secundum (Vol. 82) under the head Remedial Statutes the author has said, “While the general rule that statutes are construed as prospective only applies to remedial statutes which do not create, enlarge, diminish, or destroy vested or contractual rights but relate only to remedies or modes of procedure are generally held to operate retrospectively and to apply to pending actions or proceedings, unless such operation or application would adversely affect substantive rights. The general rule that statutes are to be construed as prospective only, unless the language employed conclusively negatives that construction, applies to remedial statutes, and such statutes will not be given retrospective or retroactive effect if to do so would impair or destroy contracts, disturb vested rights, or create new obligations. However, as to such statutes the rule is not so insistent, and does not automatically apply, and remedial or procedural statutes which do not create, enlarge, diminish, or destroy contractual or vested rights but relate only to remedies or modes of procedure are not within the general rule against retrospective operation, but are generally Reld to operate retrospectively. Such statute will not be given retrospective operation if to do so would impair contract obligations or disturb vested rights, unless the language of the statute indicates that such is the legislative intent”. It is also mentioned therein that a remedial statute is to be construed to affect the purpose for which it was enacted, and if the reason of the statute extends to past transactions as well as to these in the future, it will be so applied though it does not in terms, so direct unless to do so would impair some vested rights or violates some constitutional guarantee. A remedial statute will be construed as retrospective or retroactive where the legislative intent clearly requires such construction. In the instant case, it cannot be said that Sub-section (5) of Section 21 of the Act or Rule 64 of the RMMC Rules affect any vested rights or takes away any vested rights or affects any substantive rights. As already stated earlier, the liability of a person who has raised the minerals or has excavated the minerals without lawful authority to pay its price to the State Government, the owner of the minerals, subsists and the intention of bringing Sub-section (5) of Section 21 of the Act as well as Rule 64 of the RMMC Rules on the statute book was to provide a mode of recovery of the price of such mineral as arrears of land revenue. To my mind, the legislative intent is clear and Sub-section (5) of Section 21 of the Act is remedial, to undo the mischief and will take in its fold past actions of such persons who had raised minerals and had removed and disposed them of. Such persons are liable to pay its price to the State Government, a liability which undoubtedly exists.
52. A reading of Sub-section (5) of Section 21 of the Act will show that if a person has raised mineral from any land without any lawful authority the State Government may recover from such person the mineral so raised or where such mineral has been disposed of, its price also. The use of the word “whenever” in the beginning of Sub-section is not without significance. In my opinion a plain reading of Sub-section (5) of Section 21 of the Act leaves no manner of doubt that it applies to any past dues also and can be availed of by the State Government.
53. In answering the two questions of law or expressing opinion there on it is not required for the person as to whether in terms of Schedule I of the Rules, the price of the mineral at ten times of the royalty is reasonable or not.
54. In the case of D.S. Nakara (supra) their Lordships of the Supreme Court observed that merely because a part of the requisites for its action is drawn from a time antecedent to its passing a statute is not properly called a retrospective statute. In the case of Vishnu Ramchandra (supra) it has been observed that penal statutes which create new offences are always prospective but penal statutes which create disabilities or statutes which create no new punishment to authorise some action passed on post conduct may be interpreted retrospectively when there is a clear intendment that they are to be applied to past events. It has further been held that an Act designed to protect the public against acts of a harmful character may be construed retrospectively, if the language admits of such an interpretation, even though it may have an equal prospective meaning. In the case of Mst. Rafiquennessa (supra) it has been held that retrospective operation of statutory provision can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision constructed in the context where it occurs.
55. I am, therefore, of the opinion that under Section 21(5) of the Act the State Government can recover the price etc. of the mineral excavated prior to its insertion by any, without lawful authority.
56. In the result, both the questions referred to the Larger Bench are answered in the affirmative and it is held that Section 21(5) of the Mines and Minerals (Regulation and Development) Act, 1957 as well as Rule 64 of the RMMC Rules, 1959 as amended with effect from January 13, 1972 will apply to minerals raised before those provisions were brought on the statute book and in that sense are retrospective.