2017 (10) TMI 1519 - SC - Indian Laws

Establishment of the District Mineral Foundation under the Mines and Minerals (Development and Regulation) Act, 1957 - contribution required to be made to the District Mineral Foundation by the holder of a mining lease or a prospecting licence-cum-mining lease in addition to the payment of royalty. Establishment of DMF - Submission of petitioners is that the DMF could not have been established from a retrospective date prior to the date of the notification - HELD THAT - Section 15 of the MMDR Act empowers the State Government to make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. This section does not specifically or by necessary implication empower the State Government to frame any rule with retrospective effect. Also, the MMDR Act does not confer any specific power on the State Government to fictionally create the DMF deeming it to be in existence from a date earlier than the date of the notification establishing the DMF. Therefore, it must follow that under the provisions of the MMDR Act that we are concerned with, no State Government has the power to frame a rule with retrospective effect or to create a deeming fiction, either specifically or by necessary intendment - Section 13 of the MMDR Act does not confer any specific power on the Central Government to frame any rule with retrospective effect. Section 9B(5) and (6) read with clause (qqa) inserted in Section 13(2) of the MMDR Act enable the Central Government to make rules to provide for the amount of payment to be made to the DMF established by the State Government under Section 9B(1) of the MMDR Act. None of these provisions confer any power on the Central Government to require the holder of a mining lease or a prospecting licence-cum-mining lease to contribute to the DMF with retrospective effect. Therefore, even the scope and extent of the rule making power of the Central Government is limited. The notifications issued by the State Governments must be understood to mean (assuming the DMF could not be established with effect from 12th January, 2015 by a notification issued on a later date) that the DMF was established on the date of publication of each notification - thus, the DMFs were not established retrospectively even though the notifications established them from a date anterior to the date of the notifications - but not before the date of the Ordinance. Assuming the DMFs were established with retrospective effect from 12th January, 2015 it is of no consequence since the retrospective establishment does not prejudicially affect the interests of anybody (as will be seen later). Contribution for a period prior to the date of the relevant notifications, that is, 17th September, 2015 and 20th October, 2015 - HELD THAT - The specification of the rate of tax (or any compulsory levy for that matter) is an essential component of the tax regime, it is difficult to agree with the learned Additional Solicitor General that specifying the maximum amount of compensation to be paid to the DMF in terms of Section 9B of the MMDR Act, being an amount not exceeding one-third of the royalty, satisfies the requirements of law. What is required by the law is certainty and not vagueness not exceeding one-third could mean one-fourth or one-fifth or some other fraction. It is this uncertainty that is objectionable - thus, the petitioners are not liable to make any contribution to the DMF from 12th January, 2015. Crucial date for making the contribution to the DMF - HELD THAT - There are two categories of holders of a mining lease or a prospecting licence-cum-mining lease. For Lease holders for minerals other than coal, lignite and sand for stowing, the effective date of payment of contribution to the DMF in the case of those petitioners who are (or were) holders of a mining lease or a prospecting licence-cum-mining lease for minerals other than coal, lignite and sand for stowing would be 17th September, 2015. For Lease holders for coal, lignite and sand for stowing, the holder of a mining lease or a prospecting licence-cum-mining lease shall pay the contribution to the DMF from 20th October, 2015 or the date of establishing the DMF, whichever is later. Petition allowed.

Summary

Issues Involved:
1. Establishment of the District Mineral Foundation (DMF) under the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act).
2. Retrospective effect of the establishment of DMFs.
3. Contributions to the DMFs by holders of mining leases or prospecting licences-cum-mining leases.
4. Validity of notifications issued by the Central and State Governments regarding DMFs.
5. Effective dates for contributions to the DMFs.

Issue-wise Detailed Analysis:

1. Establishment of the District Mineral Foundation (DMF):
The petitions relate to the establishment of the DMF under the MMDR Act, 1957, and the contributions required from mining leaseholders. Section 9B of the MMDR Act mandates the State Government to establish a non-profit trust called the DMF in districts affected by mining operations. The DMF's objective is to work for the interest and benefit of persons and areas affected by mining operations. The holder of a mining lease must pay an amount equivalent to a percentage of the royalty to the DMF, as prescribed by the Central Government.

2. Retrospective Effect of the Establishment of DMFs:
The petitioners argued that the DMFs could not be established retrospectively from a date prior to the notification. The Court held that the DMFs were not established retrospectively, even though notifications established them from a date anterior to the notification. The establishment did not affect vested rights, and the notifications could be read as operational from the date of publication. The Court referenced the decision in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti, stating that fixing a date anterior to the notification does not attract the principle of disfavouring retrospective operation.

3. Contributions to the DMFs:
The petitioners challenged the requirement to make contributions to the DMFs from 12th January 2015. The Court held that contributions could not be insisted upon from this date due to the Central Government's failure to prescribe the rate on 12th January 2015. The contributions are required from the date the rates were prescribed: 17th September 2015 for minerals other than coal, lignite, and sand for stowing, and 20th October 2015 for coal, lignite, and sand for stowing, or from the date the DMF was established, whichever is later.

4. Validity of Notifications Issued by the Central and State Governments:
The Court examined the validity of notifications issued by the Central and State Governments. The Central Government issued directions to establish the DMF from 12th January 2015. However, the Court held that the rule-making power under the MMDR Act does not permit retrospective operation. The notification dated 31st August 2016, which substituted the requirement that the contribution "shall be paid with effect from 12th January 2015," was struck down as ultra vires.

5. Effective Dates for Contributions to the DMFs:
The Court concluded that contributions to the DMFs are required:
- For minerals other than coal, lignite, and sand for stowing from 17th September 2015.
- For coal, lignite, and sand for stowing from 20th October 2015 or the date of establishment of the DMF, whichever is later.

Conclusion:
The Court held that:
1. DMFs established from a date prior to the notifications are not retrospective.
2. Establishment from 12th January 2015 does not affect vested rights.
3. Contributions cannot be insisted upon from 12th January 2015 due to the lack of prescribed rates.
4. Contributions for minerals other than coal, lignite, and sand for stowing are required from 17th September 2015.
5. Contributions for coal, lignite, and sand for stowing are required from 20th October 2015 or the date of DMF establishment, whichever is later.
6. The notification dated 31st August 2016 is invalid and struck down.

The Court granted time until 31st December 2017 for full contributions to the DMFs, failing which interest at 15% per annum would apply. Mistaken contributions made prior to the determined dates can be adjusted against future contributions without interest. All petitions and pending applications were disposed of accordingly.