judgement:
Appeal No. 1937 of 1966.
96 Appeal from the judgment and order dated July 19, 1965 of the Punjab High Court, Circuit Bench at Delhi in Regular Second Appeal No. 251 D of 1964.
S.T. Desai and I. N. Shroff, for the appellant.
S.V. Gupte, K.L. Mehta, Yogeshwar Dayal, M.M. Kshatriya and G.S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Punjab High Court (Circuit Bench, Delhi).
The facts may be briefly stated: One Gajju Mal had five sons, Badri Pershad, Ganesh Dass, Devi Chand, Narain Das and Ishar Das.
The first four were by his first wife, whereas the 5th son Ishar Das was by his second wife Smt.
Kanso Devi Gajju Mal died in 1947 leaving him surviving the said five sons and Smt.
Kanso Devi.
On August 5, 1950 Tulsi Ram Seth was ,appointed by the parties as an arbitrator for resolving certain differences which had arisen relating to partition of the urban immovable properties and other assets and liabilities left by Gajju Mal.
On October 31, 1950 the arbitrator gave his award.
Under clause 6 of this award Smt.
Kanso Devi was awarded three sets of property including bungalow No. 20, Alipore Road, Delhi.
The award was made the rule of the court.
It was stated in the award that Smt.
Kanso Devi would have a widow 's estate in the properties awarded to her.
It was also provided that the immovable properties allotted and awarded to the various parties would be individually and exclusively owned by them and each party would be entitled to take physical or constructive possession of the properties allotted and awarded to his or her share.
Badri Pershad, the appellant before us, filed a suit in August 1961 against the respondent Smt.
Kanso Devi pleading inter alia that she was a limited owner of the property which had been given to her by the award and that she was trying to alienate the same and commit acts of waste to the prejudice of the reversions.
He asked for a perpetual injunction restraining her from committing acts of waste and from alienating the suit properties.
The respondent contested the suit.
On the pleas of the parties the trial court framed seven issues out of which the material one was No. 4 which was in these terms: , "Whether the defendant was 'awarded life estate only in the property in suit .9,, On April 17, 1963 the trial court dismissed the suit holding that no act of waste on the part of the respondent had been proved and that she had inherited the property under the Hindu Women 's Right to Property Act, 1937 and that the award had simply sepa 97 rated her share by metes and bounds, and under section 14( 1 ) of the she had become full owner thereof.
The first appellate court and the High Court affirmed the decree of the trial court.
The sole question for determination is whether the case of the ' respondent was governed by sub section
(1) or sub section
(2) of section 14 of ' the , hereinafter called the Act.
This section reads: 14( 1 ) "Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her us full owner thereof and not as a limited owner.
Explanation.
In this sub section, 'property ' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase of by prescription or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
( 2 ) Nothing contained in sub section ( 1 ) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift will or other instrument or the decree, order or award prescribe restricted estate in such property." According to the appellant the suit property was 'acquired by the respondent under the award given by Tulsi Ram Seth or ' alternatively under the decree based on the award, the estate being restricted by both the award and the decree.
The provision in the award that the respondent was to have a widow 's estate under Hindu Law, it is said, conferred on her only a limited estate and sub section
(1 ) would be inapplicable.
The position of the respondent throughout has been that she had interest in all the joint properties together with the right to partition under the provisions of Hindu Women 's Right to Property Act, 1937 (Act XVIII of 1937).
Thus the property was acquired by the respondent at a partition within the terms of the Explanation to sub section
(1 ) of section 14.
As she was possessed of that property at the time the Act came into force she became full owner thereof by virtue of section 14( 1 ) of the Act even though previously she was a limited owner.
Under section 3(1) of Act XVIII of 1937 as amended by Act XI 193 8 when a Hindu governed by any School of Hindu law other 98 than the Dayabhaga School died intestate leaving separate property his widow was entitled to the same share as a son in respect ,of the property left by her husband.
Under section 3 (2) when any such Hindu died having at the time of his death an interest in a Hindu Joint Family property his widow was to have the same interest in the property as he himself had.
Sub section
(3 ) provided that any interest devolving on a Hindu widow under the aforesaid provision was to be a limited interest known as Hindu women 's ,estate but that the widow was to have the same right of claiming partition as a male owner.
The case in the courts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisitions.
It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award, the five sons and the widow (respondent) of Gajju Mal enjoyed equal shares in the properties left by him.
The point for our consideration is narrowed down to this.
When a female acquires an interest under the provisions of Act XVIII of 1937 in the properties of her husband which are subsequently separated by means of a partition does she become an absolute owner under sub section
(1 ) of section 14 of the Act or does she get only a restricted estate under sub section
(2) of that section ? The contention of the learned counsel for the appellant is that the court should first look at sub section
(2) and if the case does not fall.
within its ambit and, scope then alone sub section
(1 ) will become applicable.
This manner of reading of the section is not warranted either on principle or authority.
The section has to be read as a whole 'and it would depend on the facts of each case whether the same is covered by the first Sub section or sub section
The critical words in sub section
(1 ) are "possessed" and "acquired".
The word "possessed" has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law.
In the context in which it has been used in section 14 it means the state of owning or having in one 's hand or power (see Gumrnalapura Taggina Matada Kotturuswami vs Setra Veerayya & Ors.)(1).
In S.S. Munna Lal vs
S.S. Rajkumar & Ors.(2) it was held that 1/4th share of a female which had been declared by the preliminary decree passed before the enactment of the Act was possessed by her within the meaning of section 14 and she became the full owner so that on her death the said property descended to her grandsons in accordance with the provisions of sections 15 and 16 of the Act.
The word "acquired" in sub section
(1 ) has also to be given the widest possible meaning.
This would be so because of the language of the Explanation which makes sub section
(1 ) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance 99 or by gift or by a female 's own skill or exertion or by purchase or prescription or in any manner whatsoever.
Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement.
Sub section (2) of section 14 is more in the nature of a proviso or an exception to sub section
It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any preexisting right in the female Hindu who is in possession of the property.
The Madras High Court was right in the observations made in Rangaswami Naicker vs Chinnammal & Another(1) that sub section
(2) made it clear that the object of section 14 was only to remove the disability on women imposed by law and not to interfere with contracts, grams or decrees etc.
by virtue of which a women 's right was restricted.
In Sukhram & Another vs Gauri Shankar & Another(2), one Kishan Devi had acquired in 1952 the same interest in the property of the joint family which her husband Hukan Singh had under the provisions of Act XVIII of 1937.
The question arose, whether after the coming into force of the Act she got rights of full ownership and could alienate the properties in which she had acquired a limited interest without the consent of the male members of the family.
This Court decided that she had become full owner by virtue of the provisions of section 14(1) of the Act.
This case is quite apposite for our purpose and we must hold that the respondent became a full owner of the suit properties when the Act came into force.
The mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub section
(2) as the provisions of sub section
(1) became fully applicable particularly in view of the express terms of the Explanation.
This appeal fails and it is dismissed with costs.
V.P.S. Appeal dismissed.
(1) A.I.R. 1964 Mad.

summary:
A Hindu, owning his self acquired properties, died in 1947 leaving five sons and a widow.
In 1950, an arbitrator was appointed for dividing the assets and liabilities among the heirs.
The arbitrator gave his award and a decree was passed in terms of the award.
Under the award, the widow was allotted her share of the properties and it was stated that she was to have a widow 's estate in those properties.
On the question whether, on the coming into.
force of the , she became a full owner of the. properties under section 14(1) or only had a restricted estate in such properties under section 14(2).
HELD: The words 'possessed ' and 'acquired ' in section 14( 1 ) are used with the widest possible: meaning, so that, the 'possession ' may be either actual or constructive and the 'acquisition ' can be in any manner whatsoever.
Hence, where a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her, before the coming into force of the , she was not only 'possessed ' of that property at the time of the coming into force of the Act but had also 'acquired ' it before its commencement.
The mere fact that the partition was by means of an arbitration award would not bring the matter within section 14(2) as section 14(1) had already become fully applicable.
Section 14(2) is in the nature of a proviso.
or an exception to section 14(1) and comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any preexisting right in the female Hindu to the property.
[98 F H; 99 A C, F] In the present case, the widow inherited the property under section 3 (1 ) of the Hindu Women 's Rights to Property Act, 1937, and was therefore in 'possession ' of it within the meaning of that word in section 14(1), and, when the award separated her share by metes and bounds, she 'acquired ' the property within the meaning of that section.
Therefore, she had become full owner of the property in her possession under section 14(1) on the coming into force of the , even though previously she: was a limited owner.
[97 G H; 98 D E; 99 E F] Gummalapura Taggina Matada Kotturuswami vs Setra Veerayya, [1959] Supp.
1 S.C.R. 968, Munnalal vs RaI Kumar [1962] Supp.
3 S.C.R. 418 and Sukhram vs Gauri Shankar, ; , followed.


judgement:
Appeal No. 1787 of 1966.
Appeal from the judgment and decree dated May 18, 1964 of the Kerala High Court in Appeal Suit No. 591 of 1963.
125 D. Narsaraju and A. section Nambiar, for the appellants.
W.S. Badingay, R. Mahalingier and Ganpat Rai, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Ray, J.
This is an appeal from the judgment dated 18 May, 1964 of the High Court of Kerala allowing the appeal in part and allowing declaration to the effect that the plaintiffs are next in the line of succession to V.L. Lazar and T.V. John respectively and that they are entitled to claim an appointment as trustees.
The High Court, however, concluded by saying that such appointment could be made in a properly framed suit under section 92 of the Code of Civil Procedure.
Counsel for the appellants contended that the High Court was in error in making the declaration particularly when the High Court said that such appointment could be made only in a properly framed suit under section 92 of the Code.
In order to appreciate the matters in controversy it is necessary to refer to a few facts and the frame of the suit.
The plaintiffs filed this suit in 1961 for a declaration that defendants numbered 4 to 9 were "trespassers" on the trust and that all acts and proceedings of defendants numbered 1 to 9 done since the resignation of T.V. John and V.L. Lazar in respect of the administration of the trust are invalid and void; that the plaintiffs be appointed as trustees; that defendants numbered 10 to 11 be declared to be, and to have always been, lawful trustees and for injunction restraining defendants numbered 4 to 9 from interfering with the trust; that an enquiry be made into their administration and accounts, recovery of properties and funds misused, wasted, disbursed or appropriated, and that defendant numbered 1 to 3 be declared to be unfit to continue as trustees.
There was a deed of settlement dated 20 December, 1953 executed by a Christian T.V. Kochuvareed called "Thattil Kochuvareed Educational and Charitable Trust".
Apart from the settlor, V.L. Lazar father of the first plaintiff and T.V. John father of the second plaintiff and defendants numbered 1 to 3, 10 and 11 were trustees.
On 27 May, 1957 V.L. Lazar resigned from the trusteeship.
On 12 March, 1960 T.V. John followed suit.
The settlor and the rest of the trustees appointed six more trustees being defendants numbered 4 to 9 inclusive.
The settlor Kochuvareed died on 26 July, 1961.
On 28 November, 1961 respondents numbered 1 and 2 namely, John son of V.L. Lazar and Varghese son of T.V. John the 126 plaintiffs filed suit O.S. No. 115 of 1961 claiming, inter alia, that the plaintiffs be appointed as trustees.
At the trial two preliminary issues were framed: Whether the suit was maintainable due to want of compliance with section 92 of the Code of Civil Procedure and whether the Court had jurisdiction to try this suit relating to trust.
The trial Court came to the conclusion that the suit was within the mischief of non compliance with the provisions of section 92 of the Code of Civil Procedure.
The trial Court on 12 March, 1962 dismissed the suit and held that the suit had to be instituted after obtaining sanction under section 92 of the Code.
The plaintiffs filed an appeal.
On appeal the High Court on 20 August, 1962 allowed the appeal in part and set aside the dismissal of the suit in so far as it related to prayer 'e ' and remanded the suit to the trial Court for trial in respect of that claim.
The trial Court on remand by judgment dated 23 August, 1963 held that the suit as flamed was maintainable and the plaintiffs were entitled to be declared as rightful trustees but the second plaintiff would have to exercise rights as trustee only on attaining majority.
Prayer 'e ' in the plaint was as follows : "That plaintiffs be appointed to their rightful place as trustees and the second plaintiff being a minor now, be permitted to exercise his rights and safeguard his interests until he attains majority, through his 'Next Friend, namely his father".
The appellants, viz., defendants numbered 4 to 9 preferred an appeal.
The High Court on 18 May, 1964 allowed the appeal in part and altered the declaration to the effect that the plaintiffs were next in the line of succession and that they were entitled to claim appointment as trustees, but such appointment could be only in a properly framed suit.
Counsel for the appellants contended that prayer 'e ' was within the mischief of section 92 of the Code of Civil Procedure.
It was further said that the plaintiffs (respondents 1 and 2) filed a fresh suit O.S. No. 1 of 1965 in the District Court, Trichur under section 92 of the Code of Civil Procedure praying, inter alia, for reliefs of removal of defendants numbered 4 to 9 and appointment of the plaintiffs as trustees in place of their respective fathers who resigned from such office and for other reliefs.
Counsel for the appellants contended that the finding in the present appeal that the plaintiffs were entitled to a declaration for appointment would constitute res judicata unless the same finding was set aside and 127 the matter was kept entirely open in the new suit filed by respondents 1 and 2.
Counsel for the respondents contended that the decision of the High Court could be upheld because all that it said was that the plaintiffs were entitled to a right and the question of appointment would be canvassed in the suit.
This contention is unacceptable because a suit for a bare declaration of right without further relief for possession and other reliefs as the facts and circumstances would require is not supportable.
The provisions of section 92 of the Code of Civil Procedure indicate, inter alia, that a suit for appointment of new trustees is competent only after compliance with the provisions of section 92 of the Code.
The plaintiffs, namely, respondents 1 and 2 in the present case, alleged that defendants numbered 4 to 9 were strangers and "trespassers" in relation to the trust, and that the other defendants illegally introduced defendants numbered 4 to 9 into the Board of Trustees.
The plaintiffs further alleged that defendants numbered 1 to 9 were guilty of waste and misappropriation.
The plaintiffs further alleged that they had exclusive right to be appointed trustees.
Section 92 of the Code of Civil Procedure prohibits a plaintiff from obtaining relief of appointment of new trustees without the compliance with the provision of the said section of the Code.
The only question is whether prayer 'e ' in the plaint can be said to be one for appointment of new trustees.
The plaintiffs asked for appointment.
It was said by counsel for the respondents that the plaintiffs under the deed of trust could be appointed trustees.
Reliance was placed on clause (6) of the deed of trust which, inter alia, stated that in the case of a vacancy, the remaining trustees were to appoint a new trustee.
It, therefore, follows that even under clause (6) of the deed of trust it would be an appointment of new trustees.
The trustees in the present case did not appoint new trustees.
The plaintiffs, therefore, came to court.
The reason why the plaintiffs sought the aid of the Court is the appointment of trustees.
It is only because the other trustees did not appoint a new trustee that the plaintiffs took recourse to the institution of the suit for the appointment of trustees.
Further, unless the defendants are removed there cannot be an appointment of new trustees.
We are, therefore, of opion that prayer 'e ' in the present case, viz. the plaintiffs be appointed as trustees falls within the provisions of section 92 of the Code.
If as we held that the appointment of new trustees falls within section 92 of the Code can it yet be said that the plaintiffs will be entitled to a bare declaration of their right to be appointed.
In the first place, it will be granting them the right to be appointed 128 which itself is the foundation of appointment.
If the appointment fails within the vice of section 92 any decision giving them the right "to be appointed will be prejudging the question and will be an impediment as far as the defendants are concerned in questioning the right of the plaintiffs to be appointed as trustees.
Secondly, it is well settled that if any matter is directly prohibited, the same cannot be achieved indirectly.
The appointment of new trustees is prohibited ' in the absence of the compliance with the provisions of section 92 of the Code.
If a right is granted to the plaintiffs to be appointed as trustees it will amount to an indirect way of giving the plaintiffs the relief of the right to be appointed.
It will be particularly so because the right will be res inclusa and will, therefore, be res judicata.
The right will not be open to be questioned in subsequent proceedings.
Thirdly, if the appointment of new trustees cannot be proceeded with in the absence of compliance with the provisions of section 92 of the Code and when a suit has been instituted by the plaintiffs for the self same reliefs after compliance with section 92 of the Code it is all the more necessary that the entire question of appointment which presupposes as its foundation the right to be appointed should be gone into the newly instituted suit in 1965 to which reference is made earlier.
Fourthly, a bare declaration of right will be within the mischief of section 42 of the and section 34 of the .
We are, therefore, of opinion that the judgment of the High Court giving the plaintiffs the right to be appointed trustees should be set aside.
It is made clear that contentions of the rival parties in the newly instituted suit are left open.
The finding of the High Court and the: declaration granted by the High Court are both set aside.
The suit is, therefore, dismissed.
For these reasons, the appeal is accepted and is allowed.
The appellants will be entitled to costs.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary:
By a deed of settlement, the settlor appointed besides himself, the father of the first plaintiff, the father of the second plaintiff, and defendants 1 to 3 and 10 and 11, as.
trustees of an Educational and Charitable Trust.
On the resignation of the fathers of the two plaintiffs, the remaining trustees appointed defendants 4 to 9 as trustees.
The plaintiffs flied a suit making allegations against defendants 1 to 9 and claimed that they should be appointed as trustees.
The High Court, in 'appeal, gave a declaration to the effect that the plaintiffs were; next in the line of succession, that they were entitled to claim appointment as trustees, but that such appointment could be made only in a properly framed suit after complying with the requirements of section 92, Civil Procedure Code.
The plaintiffs thereupon filed a fresh suit under section 92, C.P.C.
Meanwhile, the defendants in the ,earlier suit filed an appeal against the judgment of the High Court, to this Court.
HELD: The suit was for appointment of the plaintiffs as trustees and fell within the provisions of section 92, C.P.C.
Therefore, the judgment of the High Court giving the plaintiffs the right to be appointed as trustees, when the provisions of the section were not complied with, should be set aside.
[127 H; 128 E] (a) If the appointment fell within the vice of section 92 any decision giving the plaintiffs the right to be appointed will be prejudging the question and would be an impediment as far as the defendants are concerned, in questioning, in the second suit, the right of the plaintiffs to be appointed as trustees.
[128 A B] (b) If the right to be appointed as trustees were to be granted 10 the plaintiffs in the absence of compliance with the provisions of the section, it would amount to an indirect way of giving what was directly prohibited.
[128 B] (c) If the declaration were 'allowed to stand it would operate as res judicata and it would not be open to the defendants to question it in the subsequent proceedings.
flied for the same relief after compliance with the section.
[128 B C] (d) A hare declaration of the right without consequential relief will be within the mischief of section 42 of the or section 34 of the .
[128 D E]


judgement:
il Appeal No. 1655 of 1968.
Appeal by special leave from the judgment and order dated December 20, 1967 of the Mysore High Court in Regular Second Appeal No. 811 of 1965.
A. K. Sen, Shyamala Pappu and Vineet Kumar, for the appellant.
S.V. Gupte, Janendra Lal, B.R. Agarwala and Kumar M. Mehta, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Mysore High Court in which the question involved is whether an option given to a lessee to get the lease,, which is initially for a period of 10 years, renewed after every 10 years is hit by the rule of perpetuity and is void.
The respondent entered into a deed of lease on October 26, 1951 with the appellant in respect of premises Nos. 8 & 9, Mahatma Gandhi Road, (South Parade), Civil Station, Bangalore.
It was stipulated that the lease would be for a period of 10 years in the first instance with effect from November 1, 1961 "with ,an option to the lessee to renew the same as long as desired as provided".
Clauses 9 and 10 which are material may be reproduced: "9.
The lessee shall have the right to renew the lease of the scheduled premises at the end of the present period of ten years herein secured on the same rental of Rs. 450/ per month, for a similar period and for further similar periods thereafter on the same terms and conditions as are set forth herein; and the Lessee shall be permitted and shall have the right to remain in occupation of the premises on the same terms and conditions for any further periods of ten years as long as they desire to do so.
The Lessor shall not raise any objection whatsoever to the Lessee exercising his option to renew the lease for any further periods of ten years on the same terms and conditions as long as they desire to be in 142 occupation, provided that the Lessee shah not have the right to transfer the lease or alienate any right thereunder. ' ' It appears that before the expiry of the period of ten years from the date of the commencement of the lease the lessee wrote to the lessor informing him of the intention to exercise the option given to the lessee under the deed of lease to get the same renewed on the same terms and conditions as before for a period of ten years from November 1, 1961.
The lessor did not comply with the request.
After serving a notice the lessee filed a suit for specific performance of the covenant in the lease for renewal.
It was prayed that the lessor be directed to execute a registered deed to lease in favour of the lessee and if he failed to do so the court should execute a deed in his favour.
The lessor pleaded, inter alia, that the condition relating to renewal was hit the rule against perpetuity.
Certain other pleas were taken with which we are not concerned.
The trial court decreed the suit.
The first appellate court and the High Court affirmed the decree.
The rule against perpetuity is embodied in section 14 of the Transfer of Property Act, hereinafter called the Act.
According to it no transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong.
It is well known that the rule against perpetuity is rounded on the principle that the liberty of alienation "shall not be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property for ever out of the reach of the exercise of the power of alienation".
The words "transfer of property" have been defined by section 5 of the Act to mean an act by which a living person conveys property in present or in future to one or more other living persons etc.
The words "living persons" include a Company or association or body of individuals.
Section 105 of the Act defines "lease".
A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value.
A lease is not a mere contract but it is a transfer of an interest in land and creates a right in rem.
Owing to the provisions of section 105 a lease in perpetuity can be created but even then an interest still remains in the lessor which is called a reversion.
It is not disputed on behalf of the appellant that a lease in perpetuity could have been created but the lease in the present case 143 was not of that kind and was for a period of ten years only in the first instance.
It is said that the mischief is created by the clauses relating to renewal which are covenants that run with the land.
It is pointed out that on a correct construction of the renewal clauses the rule of perpetuity contained in section 14 would be immediately attracted.
We are unable to agree.
Section 14 is applicable only where there is transfer of property.
Even if creation of a lease hold interest is a transfer of a right in property and would fall within the expression "transfer of property" the transfer was for a period of ten years only by means of the indenture Exh.
The stipulation relating to the renewal could not be regarded as transferring property or any rights therein.
In Ganesh Sonar vs Purnendu Narayan Singha & Ors.(1) in the case of lease of land an option had been given to the lessor determine the lease and take possession of the lease hold land under specified conditions.
The question was whether such a covenant would fall within the rule laid down in the English case Woodall vs Clifton(2) in which it was held that a proviso in a lease giving an option to the lessor to purchase the fee simple of the land at a certain rate was invalid as infringing the rule against perpetuity.
The Patna High Court distinguished the English decision quite rightly on the ground that after the counting into force of the Act a contract for the sale of immovable property did not itself create an interest in such property as was the case under the English law.
According to the Patna decision the option given by the lessee to the lessor to resume the lease hold land was merely a personal covenant and was not a covenant which created an interest in land and so.
the rule against perpetuity contained in section 14 of the Act was not applicable.
The same principle would govern the present case.
The clauses containing the option to get the lease renewed on the expiry of each term of ten years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of section 14.
Even under the English law the court would give effect to a covenant for perpetual renewal so long as the invention is clear and it will not be open to objection on the ground of perpetuity; see Halsbury 's Laws of England, 3rd Edn.
23, p 627.
In Muller vs Traf Jword(3) it was held that the covenant in a lease for renewal was not strictly a covenant for renewal.
But Farwell, J., proceeded to observe that a covenant to renew had been held for at.
least two centuries to be a covenant running with the land.
If so, then no question of perpetuity would arise.
It appears that in England whatever might have been the reason, the objection of perpetuity had never been taken to cases (1) (1962) Patna 201.
(2) (3)(1901) 1 Ch.
54. of covenants for renewal.
The following observations of Farwell, J., which were quoted with approval by Lord Evershed, M.R. in Weg Motors Ltd. vs Hales & Others(1) are note worthy: "But now I will assume that this is a covenant for renewal running with the land; it is then in my opinion free from any taint of perpetuity because it is annexed to the land.
See Rogers vs Hosegood, The equitable rule that the burden of a covenant runs with the land is to be found in section 40 of the Act.
This section reads: 40.
"Where for the more beneficial enjoyment of his own immoveable property, a third person, has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands." As pointed out in Mulla 's Transfer of Property Act, 5th Edn.
at page 194, section 40 expressly says that the right of the covenantee not an interest in the land bound by the covenant nor an easement.
It is not an interest because the Act does not recognise equitable estates and it cannot be said as Sir George Jessal said in London & South Western Rly.
vs Gomm(2) that if a covenant "binds the land it creates an equitable interest in the land.
" The expression "covenant runs with the land" has been taken from the English law of real property.
It is an exception to the general rule that all covenants are personal.
Even on the footing that the clauses relating to renewal in the lease, in the present case, contain covenants running with the land the rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property has been created of the nature contemplated by that provision.
For the above reasons the appeal fails and it is dismissed with costs.
G.C. Appeal dismissed.
(1) ,188.
(2) , 580.

summary:
The respondent by a deed executed in 1951 took on lease from the appellant certain premises in Bangalore.
It was stipulated in the deed that the lease would be for a period of 10 years in the first instance with an option to the lessee to renew the, same every ten years so long as desired.
When in 1961 the first period of ten years was about to expire the respondent asked for a renewal of the lease.
On the appellant refusing to do so, the respondent filed a suit for specific performance, The suit was decreed by the trial court, the first appellate court and the High Court.
Appeal in this Court was filed by special leave.
The contention of the 'appellant was that the lease in question being in the first instance for ten years only was not a lease in perpetuity as contemplated by section 105 of the Transfer of Property Act; however the clauses relating to renewal which were covenants that ran with the land offended the rule against perpetuity in section 14 of the Act.
HELD: The 'appeal must be dismissed.
(a) Section 14 of the Act is applicable only where there is transfer of property.
Even if creation of a lease hold interest is a transfer of a right in property and would fall within the expression 'transfer of property ' the transfer was for a period of ten years only by means of the indenture in the present case.
The stipulation relating to renewal could not be regarded as transferring property or any rights therein.
[143 B] (b) The option of renewal given to the lessee did not contain a covenant which created an interest in the property of the nature that would fail within the ambit of section 14.
[143 F] Ganesh Sonar vs Purnendu Narayan Singha & Ors.
(1962) Pat.
201, applied.
Woodall vs Clifton, [1905]2 Ch.
257, referred to.
(c) In English law the, court would give effect to a covenant for perpetual renewal so long as the intention is clear and it will not be open to objection on the ground of perpetuity.
In India the equitable rule that the burden of a covenant runs with the land is to be found in section 40 of the Transfer of Property Act, but that section its.elf expressly says that the right of the covenanted is not an interest in the land bound by the covenant nor an easement.
It is not 'an interest because the Act does not recognise equitable estate.
[143 G; 144 F] Thus even on the footing that the clauses relating to renewal in the lease, in the present case, contained covenants running with the land the 141 rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property had been created of the nature contemplated in the provision.
[144 G] Muller vs Trafford, [1901]1 Ch. 54, Weg Motors Ltd. vs Hales & Ors. , 188 and London & South Western Rly.
vs Goreto, , 580, referred to.


judgement:
Appeal No. 2532 of 1966.
Appeal by special leave from the judgment and order dated August 8, 1963 of the Punjab High Court, Circuit Bench at Delhi in Civil Revision No. 330 D of 1954.
B.P. Maheshwari and S.M. Jain, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against a judgment and order of the Circuit Bench of the Punjab High Court at Delhi 137 (Single Judge) in a matter arising under the .
By ,m agreement dated April 28, 1948 the appellant company entered into a contract with the Chief Director of Purchase (Food) acting on behalf of the Government of India.
It is not necessary to give the details of this contract, because the matter was referred to arbitration under an arbitration clause included in the agreement between the parties.
The award was made and signed on April 26, 1950.
The Arbitrator awarded Rs. 17,080 2 9 with costs in favour of the company.
The Arbitrator, however, did not send a notice as such of the making and signing of the award but sent a copy of the award signed by him to the company.
The company acknowledged the receipt of this copy by two letters which are dated May 5 and May 16, 1950.
It appears that in the original which was retained in the office of the Arbitrator, it was stated that there was a covering letter giving notice of the making of the award, but the company denied that any such letter had been sent.
However, nothing much turns on it as we shall show presently.
After the copy of the award was received by the company, it filed an application under section 14(1) of the in the Court of the Subordinate Judge, Delhi on March 30, 1951 for making the award ruIe of the court.
It may be mentioned that on July 3, 1951, the Arbitrator sent the original award to the court also.
Before the Subordinate Judge objection was taken by the Union of India that the application of the company to the court was delayed since such an application under section 14(1) of the under article 178 of the Indian Limitation Act had to be made within 90 days of the receipt of the notice intimating that the award had been made and signed.
This objection prevailed with the Subordinate Judge who rejected the application.
A revision application was unsuccessfully made before the High Court and it is the order on the revision application which is the subject of appeal before us.
Originally the revision application went before a learned Single Judge of the High Court.
He referred the matter to a Division Bench which in its turn referred the case for decision to a Full ' Bench.
The Full Bench gave its opinion on November 17, 1961.
Although the Full Bench discussed the matter it did not reach any conclusion in the case, because it felt that whether the application under section 14(1) of the had been made within 90 days or not, was a question of fact which has to be decided by the learned Single Judge, and as the learned Single Judge had not gone into that question, the matter had to go back to him.
When the case came before the learned Single Judge, he took some evidence and examined the question in detail.
We upheld the Sup CI /70 1o 138 decision of the Subordinate Judge and dismissed the revision application.
It has been argued before us by Mr. B.P. Maheshwari that the judgment under appeal is erroneous, because section 14(1) of the requires that there should be a notice in writing and that notice had to be something besides the award of which a copy had been sent.
He has cited a number of rulings in support of his contention that a notice in writing is incumbent before limitation under article 178 of the Limitation Act which applies to article 14(1) petitions can start.
In chief, he relies upon Ratnawa vs Gurishiddappa Gurushantappa Magavi & Ors.
( 1 ), Puppalla Ramulu vs Nagidi Appelaslwami & Ors.(2), Jagdish vs Sunder(3), Ganga Ram vs Radha Kishan(4), Badaria Ramakrishnarnma & Ors.
vs Vattikonda Lakshmibayamma & Ors.(5).
It is not necessary to go into the reasoning which made the learned Judges in these cases to lay down that there must be a proper notice in writing of the making of the award.
That follows in fact from the words of section 14(1) of the .
That section says that when the arbitrators or umpire have given their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.
What will be considered a sufficient notice in writing of the making and signing of the award is a question of fact.
In the cited cases emphasis sometimes has been laid upon the latter part of the sub section which speaks of the amount of fees and charges payable in respect of the arbitration and award.
Sometimes emphasis has been placed upon the opening words namely that there should be a notice in writing.
Reading the word 'notice ' as we generally do, it denotes merely an intimation to the party concerned of a particular fact.
It seems to us that we cannot limit the words "notice in writing" to only a letter.
Notice may take several forms.
It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed.
In the present case, a copy of the award signed by the arbitrator was sent to the company.
It appears to us that the company had sufficient notice that the award had been made and signed.
In fact the two letters of May 5 and May 16 to which we have referred quite clearly show that the company knew full well that the arbitrator had given the award, made it and signed it.
In these circumstances to insist upon a letter which perhaps was also cent (though there is some doubt about it) is to refine the law (1) A.I.R. (2) A.I.R. 1957 A.P. 11.
(3) I.L.R. 27 Pat. 86.
(4) I.L.R. [1955] Punj.
(5) I.L.R. 139 beyond the legitimate requirements.
The only omission was that there was no notice of the amount of the fees and charges payable in respect of arbitration and award.
But that was not an essential part of the notice for the purpose of limitation.
To emphasise the latter part as being the essential part of the notice is to make the first part depend upon the determination of the fees and charges and their inclusion in the notice.
A written notice clearly intimating the parties concerned that the award had been made and signed, in our opinion certainly starts limitation.
In this view of the matter we are in agreement with the decision of the learned Single Judge who has endorsed the opinion of the Subordinate Judge that limitation began to run from the receipt of the copy of the award which was signed by the Arbitrator and which gave due notice to the party concerned that the award had been made and signed.
That is how the party itself understood when it acknowledged the copy sent to it.
Therefore, the application must be treated as being out of time and the decision of the High Court to so treat it was correct in all the circumstances of the case.
We, therefore, do not see any reason to interfere in this appeal and it is dismissed.
But we make it clear that the other part of the case, namely what is to happen to the award sent by the Arbitrator himself to the court has yet to be determined and what we say here will not affect the determination of that question.
Obviously enough that matter arises under the second subsection of section 14 and will have to be considered quite apart from the application made by the company to have the award made into rule of Court.
It was represented to us by Dr. Syed Mohammad that objections had been taken to the validity of the award and they remain still for decision.
Those of course must fall to the ground with the application which we have found to be out of time.
As to whether similar objections can be raised in answer to the award filed at the instance of the arbitrator is a question which we cannot go into in the present appeal and no expression of opinion must be attributed to us on that point.
In the circumstances of the case we leave the parties to bear their own costs.
V.P.S. Appeal dismissed.

summary:
The disputes between the appellant and the respondent, arising out of a contract between them, were referred to.
arbitration under the arbitration clause in the contract.
The award was made and signed on April 26, 1950.
The arbitrator did not send any notice of the making and signing of the award but sent a copy of the signed award to the appellant.
The appellant acknowledged receipt of the copy by two letters dated May 5, 1950 May 16, 1950.
On March 30, 1951, the appellant filed an application in the Subordinate Judge 's Court for passing a decree in terms of the award.
On the question whether the application was out of time, because, under article 178 of the Indian Limitation Act, 1908, the application had to be filed within 90 days of the date.
of service of the notice of the making of the award, HELD: Under section 14(1) of the , when the arbitrators have given their award, they shall sign it and shall give notice in writing to the.
parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbirtation and the award.
The notice need not be in the form of a separate letter.
It is sufficient, if it is in writing and intimates clearly that the award has been made and signed.
The non mention of the amount of the fees and charges payable in respect of the arbitration and award will not affect the notice as it is not an essential part of it for the purpose of limitation.
In the present case, since the appellant had sufficient notice that the award had been made and signed when a copy of the award signed by the arbitrator was sent to the appellant, the application for passing a decree in terms of the award was out of time.
[138 B, F G; 139 ' A, C D]


judgement:
n entry 23 although it incidentally touches land.
[115 C E] (b) Union consists of its three limbs namely, Parliament, Union Government and Union Judiciary.
Control by Parliament is therefore control of the Union within the meaning of entry 54 and for the purpose of ousting jurisdiction under entry 23.
[115 F G] (c) The entire legislative field relating to minor minerals having been withdrawn from the State legislature it could not be said that because section 15 did not deal with modification of leases the State was free to legislate in this field.
[117 A C] & CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
685 to 688 of 1967.
Appeals from the judgments and orders dated November 1, 1966, December 21, 1966 and December 23, 1966 of the Patna High Court in C.W.J.C. Nos. 1036, 686, 1200 and 778 of 1965 respectively.
A.K. Sen and P.K. Chatterjee, for the appellants (in all the appeals).
Lal Narain Singha, Lakshman Saran Sinha and D. Goburdhun, for the respondents (in C.A. No. 685 o.f 1967).
B.P. Jha, for the respondents (in C.A. No. 686 of 1967).
U.P. Singh, for the respondents Nos.
1 to 3 (in C.As.
687 and 688 of 1967).
103 Krishna Sen, M.M. Kshatriya and G.S. Chatterjee, for respondent No. 4 (in C.A. No. 687 of 1967) and respondents Nos.
5 to 8 (in C.A. No. 688 of 1967).
R.C. Prasad, for the intervener (in C.A. No. 685 of 1967).
The Judgment of the Court was delivered by Hidayatullah, C.J.
This judgment will also govern the.
disposal of Civil Appeals 686 (Kanti Prasad Pandey vs State of Bihar and others), 687 (Shri Krishna Chandra Gangopadhya vs State of Bihar and others) and 688 (M/s. Pakur Quarries Private Ltd. & Ant.
vs State of Bihar and others) of 1967.
These four appeals have been brought against a common judgment, November 1, 1966, of the High Court of Patna and arise out of four petitions under article 226 of the Constitution filed to question the validity of Proviso (2) to section 10(2) added by Bihar Land Reforms (Amendment) Act 1964 (Bihar Act 4 of 1965), and the operation of the second sub rule of r. 20 added on December 10, 1964 by a notification of the Governor in the Bihar Minor Mineral Concession Rules, 1964.
The facts of all the four cases are similar and the same points arise ,for determination.
It is, therefore, sufficient to state the facts in Civil Appeals 685 and 686 as illustrative of the others as well.
One Jyoti Prakash Pandey obtained on March 23, 1955 from Babu Bijan Kumar Pandey and Smt.
Anita Devi acting for herself ' and also as legatee under the will of one Baidyanath Pandey, registered leases to quarry stone ballast, boulders and chips from and upon Blocks Nos. 32, 45/1 45/2 and 45/3 in tauzi No. 1452, khata No. 1 in Mouza Malpahari No. 89 in Pakur SubDivision of Santhai Parganas.
The leases were to commence from November 1, 1954 and to end on October 31, 1984, that is to say, they were for a total period of 30 years.
Jyoti Prakash Pandey was working under the name and style of 'Stone India '.
He sold his rights, title and interest by a registered sale deed on September 9, 1963 to the present appellant.
It is admitted that rent under the terms of the original lease was deposited upto September 1965.
On the passing of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) the ex landlords ceased to have any interest from the date of vesting and in their place the State of Bihar became lessor under section 10(1) of the Land Reforms Act.
The terms of section 10 were as given below.
After the vesting of the estate of the inter "10.
Subsisting leases of mines and minerals: (1)Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been 104 mediaries, the State of Bihar as the new lessor recognised the lease for the quarrying of stones for the remaining period and the Deputy Commissioner, Santhal Parganas asked for the rent from the date of vesting to 30 April, 1965 at the rate of Rs. 200/per year as stated in the original lease.
This was by a letter issued from his office on February 2, 1963.
On December 10, 1964 the appellants received a letter which gives the gist of the facts on which the present controversy starts and the relevant part may be quoted here: "Government have been pleased to amend the section 10 of Bihar Land Reforms Act, 1950, and according to which the terms and conditions in regard to leases for minor minerals stand statutorily substituted by the corresponding terms and conditions by the Bihar Minor Mineral Concession Rules, 1964.
As a result of this, rent and royalty etc.
in respect of minor minerals in the State irrespective of the date on which the lease was granted are to be paid by all categories of leases according to the rates given in the aforesaid Rules with effect from 27 10 64". 'The 'appellants denied their liability to pay.
The Government informed them by letter as follows: "This is to inform you that the terms and conditions of your mining lease in so far as they are inconsistent with the Bihar Minor Mineral Concession Rules, 1964, framed by the State Government under section 15 of the Mines & Minerals (Regulation & Development) Act, 1957, stand substituted by the corresponding terms and conditions prescribed by the Bihar Mineral Concession Rules, 1964, from 27 1 1964.
Accordingly, leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease and such holder shall be entitIed to retain possession of the lease hold property.
(2) The terms and conditions of the said lease by the State Government shall mutatis mutandis be the same as the terms and conditions of the subsisting condition that, if in the opinion of the State Government the holder of the lease had not, before the date of the commencement of this Act, done any prospecting or development work, the State Government shall be entitled at any time before the expiry of one year from the said date to determine the lease by giving three months ' notice in writing: Provided that nothing in this sub section shall be deemed to prevent any modifications being made in the terms and conditions of the said lease in accordance with the provisions of any Central Act for the time being in force regulating the modification of existing mining leases.
(3) The holder of any such lease of mines and minerals as is referred to in subsection (1) shall not be entitled to claim any damages from the outgoing proprietor or tenure holder on the ground that the terms of the lease executed by such proprietor or tenure holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act.
105 dead rent, royalty and surface rent in addition to the other substitution as per Bihar Mineral Concession Rules, 1964, will be as follows : 1.
Dead rent .
Rs. 50/ per acre perannum.
Royalty .
Rs. 3/ per 100 cft.
of stone chips.
Rs. 2/ per 100 cft.
of stone ballast and boulders.
Rs. 4/ per 100 cft.
on building stones.
1/ per 100 Nos.
of stones 'setts '.
Surface rent 3 .
Rs. 10 per acre per year.
" It is this additional demand and the liability to pay, which is the subject of controversy here.
The Bihar Government contends that the terms of the original lease have been validly altered by the operation of the second proviso to section 10 (2) of the Bihar Land Reforms Act added first by Ordinance III of 1964 and later incorporated again by the Bihar Land Reforms (Amendment) Act, 1964 (Act 4 of 1965) and the addition of section 10A to the Act by the same enactments.
The material part of the second section of Act 4 of 1965 is quoted below.
Section 10A provided for the vesting of the interest of leases of mines or minerals which were subject to such leases and need not be read here.
The State Government also relied upon the Bihar Mineral Concession (First Amendment) Rules, 1964 by which a second sub rule was added to Rule 20.
The twentieth rule, purporting to be framed under section 15 of the Mines and Minerals (Regulation 'and Development) Act, 1957 (67 of 1957) was amended on December 19, 1964 and now reads: Rule 20.
( 1 ) Dead rent, royalty and surface rent.
When a lease is granted or renewed.
(a) dead rent shall be charged at the rates specified in Schedule 1, (b) royalty shall be charged at the rates specified in Schedule II, and (c) surface rent shall be charged at the rates specified by the Govt.
in the Revenue Department from time to time.
Amendment of section 10 of Bihar Act XXX of 1950.
In Section 10 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) (hereinafter referred to as the said Act). (a) in sub section (2), the following second proviso shall be added, namely : "Provided further that the terms and conditions of the said lease in regard to minor minerals as defined in the (Act LXVII of 1957), shall, in so far as they are inconsistent with the rules made by the State Government under section 15 of that Act, stand substituted by the corresponding terms and conditions prescribed by those rules and if further ascertainment and settlement of the terms will become necessary then necessary proceedings for that purpose shall be undertaken by the Collector"; and (b) after sub section
LISup.
Cl/70 8 106 (2) On and from the date of commencement of these rules, the provisions of sub rule (1) shall also apply to leases granted or renewed prior to the date of such commencement and subsisting on such date.
" The contention is that the amendment of section 10 of the Bihar Land Reforms Act is ultra vires the Constitution and that rule 20(2) does not legally entitle the recovery of the dead rent, royalty etc.
as in the Schedules to the Bihar Minor Mineral Concession Rules, 1964.
To understand fully the argument on behalf of the appellants a resume of the legislation on the subject of mines and minerals is necessary.
Under the Government of India Act, 1935, the subject of Mines and Minerals was covered by Entry 36 of the Federal Legislative List I and entry No. 23 of the 'Provincial Legislative List II of the 7th Schedule.
These entries read as follows: "Entry 36.
Regulation of mines and oil fields and mineral developments to which such regulation and development under a Federal control is declared by Federal law to be expedient in the public interest." "Entry 23.
Regulation of mines and oil fields and mineral development subject to the provisions of List I with respect to regulation and development under Federal control.
" When the Indian Independence Act, 1947 was passed the word federal ' where it occurs for the first time in entry 36 and in entry 23 was changed to 'dominion '.
The entries are practically repeated in the present Constitution and may be read immediately here: "Entry 54, of List H Union List reads: "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
" Entry 23 of List II State List reads: "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
" The difference between the entries of the Government of India Act, 1935 and the present Constitution lies in the removal of oilfields from the entries and the declaration now must be by Parliament.
Entry 53 in List I deals with oilfields and mineral resources.
107 In 1948 the Legislative Assembly enacted the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948).
It received the assent of the Governor General on September 8, 1948.
It was an Act to provide for the regulation of mines and oilfields and for the development of minerals.
In section 2 of that Act is to be found the declaration contemplated by entries 36 and 23, 7th Schedule of the Government of India Act, 1935.
That declaration reads as follows: "2.
It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided.
" Section 3 of the Act of 1948 contained definitions.
There were definitions of 'mine ' and 'minerals '.
The former meant an excavation for the purpose of searching for or obtaining minerals and included an oil well and the latter included natural gas and petroleum.
Section 4 provided that no mining lease would be granted after the commencement of that Act otherwise than in accordance with the rules made under that Act and that a mining lease granted contrary to the provisions would be void and of no effect.
Section 5 empowered the Central Government, by notification to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area.
In particular the rules could provide for the manner in which, the minerals or areas in respect of which and the persons by whom, 'applications for mining leases could be made and the fees payable, the terms on which and the conditions subject to which, mining leases might be granted, the areas and the period for which any mining lease might be granted and the maximum and minimum rent payable by a lessee, whether the mine was worked or not.
Under section 6 the Central Government had power to make rules as respect mineral development.
Section 7 then provided as follows: "7.
(1) The Central Government may, by notification in the official Gazette, make rules for the purpose of modifying or altering the terms and conditions of any mining lease granted prior to the commencement of this Act so as to bring such lease into conformity with the rules made under sections 5 and 6: Provided that any rules so made which provide for the matters mentioned in clause (c) of sub section (2) shall not come into force until they have been approved, either with or without modification 's, by 'the Central Legislature.
108 (2) The rules made under sub section (1) shall provide (a) for giving previous notice of the modification or alteration proposed to be made thereunder to the lessee, and when the lessor is not the Central Government, also to the lessor and for affording them an opportunity of showing cause against the proposal.
(b) for the payment of compensation by the party who would be benefited by the proposed modification or alteration to the party whose rights under the existing lease would thereby be adversely affected; and (c)for the principles or which, the manner in which and the authority by which the said compensation shall be determined.
" Section 8 provided that the Central Government might by notification direct that 'any power exercisable under that Act might be exercised, subject to such conditions if any, as might be specified by such officer or authority or might be specified in the direction.
In furtherance of the powers conferred the Central Government framed the Mineral Concession Rules 1949 and they came into force on the twenty fifth day of October 1949.
These rules for the first time defined minor minerals and after amendments from time to time the term meant: "3 (ii) 'minor mineral ' means building stone, boulder, shingle, gravel, Chalcedony pebbles (used ,for ball mill purposes only), limeshell, kankar and limestone used for lime burning, murrum, brick earth (Fuller 's earth), Bentonite, ordinary clay, ordinary sand (used for non industrial purposes), road metal, reh matti, slate and shale when used for building material.
" Rule 4 however provided: "4.
Exemption.
These rules shall not apply to minor minerals, the extraction of which shall be regulated by such rules as the Provincial Government may prescribe.
" The word "provincial" was later changed to 'State '.
Although some of the Provinces (now States) made Minor Mineral Concession Rules, it is admitted that Bihar Government did not frame any such rules.
The leases of the appellants ' predecessors were granted in 1955 during the subsistence of the Act of 1948 and the Rules of 1949.
It is also to be noticed that a fresh declaration was made by Parliament as required by entry 54 List I Union List of the 7th 109 Schedule of the Constitution.
The existing laws, however, continued.
Without a declaration by Parliament the field of legislation might have been open to the State Legislatures under entry 23 of List II State List of the Constitution but no law was made except what was enacted by the Bihar Legislature in the Land Reforms Act about vesting of mines in the State and the emergence of the State as a lessor in place of all original lessors.
Further rules were made by the Central Government in 1955 and 1956.
In 1955 Minerals Conservation and Development Rules were made which were later replaced in 1958.
On September 4, 1956, the Central Government in exercise of the powers conferred by section 7 of the Act of 1948 made the Mining Leases (Modification of Terms) Rules 1956.
Under these rules existing Conservation 'and Development Rules.
The expression 'existing mining leases were to be brought into conformity with the Minerals Conservation and Development Rules.
The expression 'existing mining leases ' was defined as a mining lease granted before 25th day of October 1949 and subsisting at the commencement of those rules 'but did not include any lease in respect of any minor mineral within the meaning of clause (c) of section 3 of the Act of 1948.
We now come to the year 1957.
In that year Parliament enacted the (Act 67 of 1957).
It came into force from December 28, of 1957 made amendments in the Act of 1948 so as to make the latter relate to oilfields only.
All references to minerals other than oil were removed, with the result that it became legislation exclusively relating to oil and gas.
Since the Act of 1948 was thus altered, Parliament enacted new provisions for minerals in Act 67 of 1957.
We are primarily concerned with this Act in these appeals.
A glance at some of the provisions of Act 67 of 1957 is necessary.
The Act 67 of 1957 came into force on 1st June, 1958 and extended to the whole of India.
It contained the following declaration in section 2: "It is hereby declared that it is expedient in the public interest that the Union should take under the control the regulation of mines and the development of minerals to the extent hereinafter provided.
" By definition minerals excluded mineral oils because the Act of 1948 exclusively dealt with oil. 'Minor minerals ' were defined to mean building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral.
Act 67 of 1957 contained 33 sections which were separated by general headings 110 showing the topics dealt with.
The first group of sections 4 9 contained general restrictions on undertaking prospecting and mining operations.
of this group we may quote here section 4 which will be considered later: "4.
Prospecting or mining operations to be under license or lease (1 ) No person shall undertake any prospecting or mining operations in ,any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder: Provided that nothing in this sub section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.
(2) No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.
" Section 5 lays down restrictions on the grant of prospecting licences or mining leases.
Section 6 prescribes.
the maximum area for which a prospecting license or mining lease may be granted and section 7 the periods for which prospecting licences may be granted or renewed and section 8 the periods for which mining leases may be granted or renewed.
Section 9 fixes the royalties in respect of mining leases.
Then follows another group of sections 10 12 which lays down the procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government.
The next group of sections 13 16 is headed Rules for regulating the grant of prospecting licences and mining leases.
Section 13 gives power to the Central Government to make rules in respect of minerals.
Section 14 however excludes the application of sections 4 13 to minor minerals.
It reads: "The provisions of sections 4 to 13 (inclusive) shall not apply to prospecting licences and mining leases in respect of minor minerals." Section 15 gives power to the State Governments to make rules in respect of minor minerals.
It reads: 111 "15 (1 ).
The State Government may, by notification in the official Gazette, make rules.
for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith.
(2) Until rules are made under sub section (1 ), any rules made by a State Government regulating the grant of prospecting licences and mining leases m respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.
" Section 16 gives power to modify mining leases granted before 25th October, 1949.
It reads: "16(1 ).
All mining leases granted before the 25th day of October, 1949, shall, as soon as may be after the commencement of this Act, be brought into conformity with the provisions of this Act and the rules made under sections 13 and 18: Provided that if the Central Government is of opinion that in the interests of minerals development it is expedient so to do, it may, for reasons to be recorded, permit any person to hold one or more such mining leases covering in any one State a total area in excess of that specified in clause (b) of section 6 or for a period exceeding that specified in sub section (1 ) of section 8.
(2) The Central Government may, by notification in the official Gazette, make rules for the purpose of giving effect to the provisions of sub section (1) and in particular such rules shall provide (a) for giving previous notice of the modification or alteration proposed to be made in any existing mining lease to the lessee and where the lessor is not the Central Government also to the lessor and for affording him an opportunity of showing cause against the proposal.
(b) for the payment of compensation to the lessee in respect of the reduction of any area covered by the existing mining.
lease; and (c) for the principles on which, the manner in which and the authority by which, the said compensation shall be determined.
" Section 17 stands by itself as a group and contains special powers of Central Government to undertake prospecting or minning operations in certain cases.
Section 18 deals with mineral development 'and gives additional rule making power to the Central 112 Government.
Next follow some miscellaneous provisions; of these, only two interest us.
Section 19 lays down that prospecting licences or mining leases granted, renewed or acquired in contravention of the provisions of the Act shall be void and of no effect and section 20 that the provisions apply to prospecting licences or mining leases whether granted before or after the Act.
The rest of this Act does not concern this dispute.
It may be pointed out here that the rules made under section 13 do not apply to minor minerals in view of the provisions of section 14.
The State of Bihar had not made any rules till the Bihar Minor Mineral Concession Rules, 1964 were made.
The modification of the terms of existing mining leases was provided for in section 16 but that provision applied to mining leases granted before 25th October, 1949.
The provisions of Mining Leases (Modification of Terms) Rules, 1955 did not apply to minor minerals because the definition of 'existing mining lease ' excluded a lease in respect of any minerals.
The power to modify the existing leases in the case had to be found elsewhere.
The argument of the appellant is that apart from the provisions of the 2nd proviso to section 10 added to the Land Reforms Act, 1950 in 1964 by Act IV of 1965 and second sub rule added to rule 20 of the Bihar Minor Mineral Concession Rules, 1964, there is no power to modify the terms.
These provisions of law are said to be outside the competence of the State Legislature and the Bihar Government.
With regard to the State Legislature it is contended that the scheme of the relevant entries in the Union and State List is that to the extent to which regulation of mines and mineral development is declared by Parliament by law to be expedient in the public interest, the subject of legislation is withdrawn from the jurisdiction of the State Legislature and therefore Act 67 of 1957 leaves no legislative field to the Bihar Legislature to enact Act 4 ' of 1965 amending the Land Reforms Act.
As regards Rule 20(2) it is contended that the rule making power of its own force cannot reach mining leases granted in 1955 and that this could only be done by a competent legislature.
These are the two matters which need decision.
The main arguments are supplemented by the following contentions.
That the Bihar Rules in so far as they make demands of rent and royalty on the existing leases which were executed prior to their coming into force are beyond the power to make rules in respect of minor minerals under section 15 of Act 67 of 1957, that section 15 itself is unconstitutional and void because it delegates legislative power to the rule making authority and it is excessive delegation and that the amendment of Bihar Land Reforms.
Act is void because it affects the fundamental rights of the appellants guaranteed under Articles 31 'and 19 of the Constitution.
113 Although these supplementary arguments were raised it is obvious that they can arise according as the two main arguments are allowed or disallowed.
Therefore it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment to section 10 of the Reform Act was wanting.
As the amendment was made after Act 67 of 1957 we have to consider the position in relation to it.
Entry 54 of the Union List speaks both of regulation of mines and minerals development and entry 23 is subject to entry 54.
It is open to parliament to declare that it is expedient in the public interest that the control should rest in Central Government.
To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest.
Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament.
Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature.
This proposition is also self evident that no attempt was rightly made to contradict it.
There are also two decisions of this Court reported in the Hingir Rampur Coal Co. Ltd. & Ors.
vs State of Orissa and Ors.(1) and State Orissa vs
M. A. Tulloch & Co. (2) in which the matter is discussed.
The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature.
If the impugned legislation falls within the ambit of such scope it will be valid; if outside it, then it must be declared invalid.
The declaration is contained in section 2 of Act 67 of 1957 and speaks of the taking and the control of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself.
We have thus not to look outside Act 67 of 1957 to determine what is left within the competence of the State Legislature but have to work it out from the terms of that Act.
In this connection we may notice what was decided in the two cases of this Court.
In the Hingir Rampur(1) case a question had arisen whether the Act of 1948 so completely covered the fields of conservation and development of minerals as to leave no room for State legislation.
It was held that the declaration was effective even if the rules contemplated under the Act of 1948 had not been made.
However, considering further whether a declaration made by a Dominion law could be regarded as a declaration by Parliament for the purpose of entry 54, it was held that it could not and there was thus a lacuna which the Adaptation of ; (2) [1964] 4 S.C.R. 461.
114 Laws Order, 1950 could not remove.
Therefore, it was held that there was room for legislation by the State Legislature.
In the M. A.Tulloch case(1) the firm was working a mining lease granted under the Act of 1948.
The State Legislature of Orissa then passed the Orissa Mining Areas Development Fund Act, 1952, and levied a fee for the development of mining areas within the State.
After the provisions came into force a demand was made for payment of fees due from July 1957 to March 1958 and the demand was challenged.
The High Court held that after the coming into force of Act 67 of 1957 the Orissa Act must be held to be non existent.
It was held on appeal that since Act 67 of 1957 contained the requisite declaration by Parliament under entry 54 and that Act covered, the same field as the Act of 1948 in regard to mines and mineral development, the ruling in Hingir Rampur(2) case applied and as sections 18(1) and (2) of the Act 67 of 1957 were very wide ruled out legislation by the State Legislature.
Where a superior legislature evinced an intention to cover the whole field, the enactments of the other legislature whether passed before or after must be held to be overborne.
It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation.
As section 19( 1 ) covered the entire field, there was no scope for the argument that till rules were framed under that section, room was available.
These two cases bind us and apply here.
Since the Bihar State Legislature amended the Land Reforms Act after the coming into force of Act 67 of 1957, the declaration in the latter Act would carve out a field to the extent provided in that Act and to that extent entry 23 would stand cut down.
To sustain the amendment the State must show that the matter is not covered by the Central Act.
The other side must, of course, show that the matter is already covered and there is no room for legislation.
We have already analysed Act 67 of 1957.
The Act takes over the control of regulation of mines and development of minerals to the Union; of course, to the extent provided.
It deals with minor minerals separately from the other minerals.
In respect of minor minerals it provides in section 14 that sections 4 13 of the Act do not apply to prospecting licences and mining leases.
It goes on to state in section 15 that the State Government may, by notification in the official Gazette, make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith, and that until rules 'are made, any rules made by the State Government regulating the grant of prospecting licences and mining lease in respect of minor minerals which were in force immediately before the commencement of (1) [1964] 4S.C.R.461.
(2) [1961] 2 S.C.R. 537. 115 the Act would continue in force.
It is admitted that no such rules were made by the State Government.
It follows that the subject of legislation is covered in respect of minor minerals by the express words of section 15(1).
Parliament has undertaken legislation and laid down that regulation of the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith must be by rules made by the State Government.
Whether the rules are made or not the topic is covered by Parliamentary legislation and to that extent the powers of State Legislature are wanting.
Therefore, there is no room for State legislation.
Mr. L.N. Sinha argued that the topic of legislation concerns land and therefore falls under entry 18 of the State List and he drew our attention to other provisions on the subject of mines in the Land Reforms Act as originally passed.
The abolition of the rights of intermediaries in the mines and vesting these rights as lessors in the State Government was a topic connected with land and land tenures.
But after the mining leases stood between the State Government and the lessees, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23 even though the regulation incidentally touches land.
The pith and substance of the amendment to section 10 of the Reforms Act falls within entry 23 although it incidentally touches land and not vice versa.
Therefore this amendment was subject to the overriding power of Parliament as declared in Act 67 of 1957 in section 15.
Entry 18 of the State List, therefore, is no help.
Mr. Lal Narain Sinha next contended that the provisions of sections 4 14 do not envisage control of the Union which is a condition precedent to the ousting of the jurisdiction under Entry 23.
Obviously Mr. Lal Narain Sinha reads Union as equivalent to Union Government.
This is erroneous.
Union consists of its three limbs, namely, Parliament, Union Government and the Union Judiciary.
Here the control is being exercised by Parliament, the legislative organ of the Union and that is also control by the Union.
By giving the power to the State Government to make rules, the control of Union is not negatived.
In fact, it establishes that the Union is exercising the control.
In view of the two rulings of this Court referred to earlier we must hold that by enacting section 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases.
By the declaration and the enactment of section 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to section 10 in the Land Reforms Act.
The enactment 'of the proviso was, therefore, without jurisdiction.
116 This leaves for consideration the second sub rule added to Rule 20 in December, 1964 by the State Government.
It will be noticed that the rule as it stood previously applied prospectively to all 1eases which came to be executed after the promulgation of the rules.
The second sub rule made ,applicable those provisions to all leases subsisting on the date of the promulgation of the rules.
The short question is whether the rules could operate on leases in existence prior to their enactment without the authority of a competent legislature.
Vested rights cannot be taken away except under authority of law ,and mere rule making power without the support of a legislative enactment is not capable of achieving such an end.
There being two legislatures to consider, namely, Parliament and the State Legislature we have first to decide which legislature would be competent to grant such power.
We have already held that the whole of the legislative field was covered 'by the Parliamentary declaration read with provisions of Act 67 of 1957, particularly section 15.
We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I The whole of the topic of minor minerals became a Union subject.
The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level.
Therefore, if the old 1eases were to be modified a legislative enactment by Parliament on the lines of section 16 of Act 67 of 1957 was necessary.
The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to section 10 of the Land Reforms Act.
It will further be seen that Parliament in section 4 of Act 67 of 1957 created an express bar although section 4 was not applicable to minor minerals.
Whether section 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in section 14 of Act 67 of 1957 that the provisions of sections 4 13 (inclusive) do not apply.
Therefore, there does not exist any prohibition such as is to be found in section 4(1) Proviso in respect of minor minerals.
Although section 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949.
In regard to leases of minor minerals executed between this date and December 1964 when Rule 20(1) was enacted, there is no provision of law which enables the terms of existing leases to be altered.
A mere rule is not sufficient.
Faced with this difficulty Mr. Lal Narain Sinha attempted to claim power for the second Proviso to section 10 of the Land Reforms Act .from entry 18 of List II, a contention we have rejected.
He also attempted to find a field for enactment by the State Legislature for the said proviso.
This argument was extremely ingenious and needs separate notice.
117 The contention was that modification of existing leases was a separate topic altogether and was not covered by section 15 of Act 67 of 1957.
Therefore if Parliament had not said anything on the subject the field was open to the State Legislature.
The other side pointed to the words 'and for purposes connected therewith ' in section 15 and contended that those words were sufficiently wide to take in modification of leases.
Mr. Lal Narain Sinha 's argument is unfortunately not tenable in view of the two rulings of this Court.
On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature.
We have also held that vested rights could only be taken away by law made by a competent legislature.
Mere rule making power of the State Government was not able to reach them.
The authority to do so must, therefore, have emanated from Parliament.
The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957.
For that special legislative provision was necessary.
As no such parliamentary law had been passed the second sub rule to Rule 20 was ineffective.
It could not derive sustenance from the second Proviso to section 10(2) of the Land Reforms Act since that proviso was not validly enacted.
In the result, therefore, these appeals must succeed.
They are allowed with costs.
A mandamus shall issue restraining the State Government from enforcing the provisions of the second Proviso to section 10(2) added by Bihar L, and Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965) and the second sub rule of Rule 20 added by a notification on December 10, 1964 to the Bihar Mineral Concession Rules, 1964.
G.C. Appeals allowed.

summary:
Entry 54 of the Union List I in the Seventh Schedule to the Constitution confers power for the regulation of mines and mineral development to the extent to which such regulation and development under the control of the union is declared by Parliament by law to be expedient in the public interest.
The corresponding entry in the Federal List I under the Government of India Act, 1935 was entry 36 which besides mines and mineral development dealt with oilfields also.
Entry 23 of List II of the Constitution gives power for regulation of mines and mineral development to the States subject to entry 54 of List I. The corresponding entry under the Government of India Act was entry 23 of List Il.
The Central Assembly in exercise of its power under entry 36.
of List I in the Government off India Act enacted the Mines and Minerals (Regulation and Development) Act 53 of 1948 which dealt with mines, mineral development as well as oilfields.
Rule 4 of the Mineral Concession Rules, 1948 made under the Act which came into force on October 25, 1949 gave power to the State Government to frame rules for the regulation and development of 'minor minerals ' as defined in the Rules.
In 1957 Parliament passed the Mines and Minerals (Regulation and Development) Act 67 of 1957.
The Act of 194 8 was adapted to deal with oilfields and gas only.
In Act 67 of 1957 the provisions relating to regulation of mines in s.s. 4 to 13 were by section 14 made inapplicable to 'minor minerals ' as defined in the Act.
Rules relating to minor minerals were under section 15 to be made by State Governments and till such rules were made any rules enforce at the commencement of the Act were to continue.
The appellant purchased in 1963 a lease for quarrying minor minerals as defined in Act 67 of 1957 from a vendor who had taken the original lease from the then landlords in 1955.
When under section 10(1) of the Bihar Land Reforms Act, 1950) the rights of the intermediary landlord vested in the State of Bihar the said State became lessor of the appellant 's lease.
The lease was confirmed on behalf of the State and rent under the terms of the original lease was paid by the appellant up to September 1965.
The Bihar Government had not framed any rules relating to minor minerals under Act 53 of 1948 but it framed the Bihar Minor Mineral Contession Rules, 1964 under section 15 of the Act 67 of 1957.
Also, in 1964 the Bihar legislature amended section 10(2) of the Reforms Act.
A second pro viso was added to sub el.
(2) whereby the terms and conditions of and pubsisting leases of minor minerals would be substituted by the terms and 101 conditions laid down in the Bihar Minor Mineral Concession Rules to the extent that the former were inconsistent with the latter.
Rule 20 of the said Bihar Rules as originally framed provided for realisation of dead rent, royalty and surface rent in 'respect of leases granted or renewed.
In terms the rule was prospective only.
But in December 1964 it was amended by the addition of a second sub rule according to which the provisions as to dead rent etc.
would also apply to leases granted or renewed prior to the date of the commencement of the Act and subsisting on such date.
On the strength of the amended section 10(2) of the Reforms Act and the amended r. 20 the Bihar Government demanded from the appellant, dead rent, royalty and surface rent contrary to the terms of his lease.
The appellant thereupon filed a writ petition in the High Court.
Dissatisfied with the judgment of that court the appellant came to this Court.
It was contended on behalf of the: appellant: (i) that the subject of regulation of mines and mineral development came within the exclusive jurisdiction of Parliament as a result of the passing of Act 67 of 1957 with the result that the State Legislature was left with no power to pass the second proviso to section 10(2) and the said proviso was therefore ultra vires, (ii) that r. 20(2) being without legislative support could not touch a lease granted, in 1955.
On behalf of the respondent State it was urged that (a) the 2nd proviso to section 10(2) of the Reforms Act fell not under entry 23 but under entry 18 of List II which dealt with land and land tenures; (b) Act 67 of 1957 did not result in control of the union as contemplated by entry 54 in List I and therefore the State 's jurisdiction under entry 23 List II was not ousted; (c) modification of leases was not covered by section 15 of the said Act and since Parliament was silent on that subject the field remained open for legislation by the State.
HELD: (i) Entry 54 of the Union List speaks both of regulation of mines and mineral development and entry 23 is subject to entry 54.
It is open to Parliament to declare that it is expedient in the public interest that the control should vest in Central Government.
Once: this declaration is made and the extent laid down the subject of the legislation to the extent laid down becomes an exclusive subject for legislation by Parliament.
Any legislation by the State after such declaration and touching upon the field disclosed.
in the field is extracted from the legislative competence of the State.
[113 B D] The declaration contemplated by entry 54 is contained in section 2 of Act 67 of 1957 and the Central Government is given control as to regulation of mines and mineral development to the extent provided in the Act.
Thus what is left within the competence of State Government has to be worked out from the terms of the Act itself.
[113 F] The Act deals with minor minerals separately from other minerals.
In respect of minor minerals it provides in section 14 that sections 4 to 13 do not apply to prospecting licences and mining leases.
It goes on to state in section 15( 1 ) that the State Government may by 'notification make 'rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith, and in section 15(2) that till such rules. are framed any rules already in force would continue.
No 'rules existed in the State of Bihar which could be preserved under section 15(2).
Therefore the whole subject of legislation was covered in respect of minor minerals by section 15(1).
Whether rules under that section were made or not the topic was covered by Parliamentary legislation and to that extent the powers of the State Legislature were wanting.
[114 G 115 B] It must accordingly be held that by the declaration in section 2 and by the enactment of section 15 the whole of the field relating ' to minor minerals came 102 within the jurisdiction of Parliament and no scope was left 'for the enactment of the second proviso to section 10(2) of the Land Reforms Act.
The second proviso was therefore ultra vires.
Hingir Rampur Coal Co. Ltd. & Ors.
vs State of Orissa & Ors.
; and State of Orissa vs
M.A. Tulloch (ii) Vested interests cannot be taken away except by law made by a competent legislature.
Mere rule making power is not sufficient.
In view of Act 67 of 1957 the Bihar Legislature had lost jurisdiction to legislate about minor minerals.
The power of the Central Government; to modify existing mining leases was confined under section 16 of the Act to leases granted before October 25, 1949.
For modifying leases granted after that date legislation by Parliament on the lines of section 16 was necessary.
Rule 20(2) of the Bihar Minor Concession Rules, 1964 was ineffective 'for the purpose.
It could not derive sustenance from the 2nd proviso to section 10(2) of the Reforms Act as that proviso was not validly enacted.
There was also no other legislative support since section 15 of the Act of 1957 did not contemplate alteration of terms of leases already in existence before that Act was passed.
[116 B E; 116 G; 117 D] (iii) The contentions raised on behalf of the State must be rejected: (a) The abolition of the rights of intermediaries in the mines and vesting of these rights as lessors in the State Government was a topic connected with land and land tenures.
But after the mining leases stood between the State Government and the leases, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23.
The pith and substance of the amendment to section