Supreme Court of India
KIRLOSKAR FERROUS INDUSTRIES LIMITED & ANR.versusUNION OF INDIA & ORS.
- Citation
- 2024 INSC 848
- Decided
- 7 November 2024
- Bench
- D Y CHANDRACHUD
Holding
The explanations to Rule 38 of the MCR 2016 and Rule 45 of the MCDR 2017 are not unreasonable or arbitrary and do not violate Article 14, as they are within the executive’s policy‑making authority.
Summary
The petitioners, a mining leaseholder and its shareholder, challenged the explanations to Rule 38 of the Mineral (Other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016 and Rule 45 of the Mineral Conservation and Development Rules, 2017, alleging that the inclusion of previously paid royalty, DMF and NMET contributions in the computation of "sale value" caused a compounding effect and that the differential treatment of coal versus other minerals was unreasonable, thereby violating Article 14. The Court examined the statutory scheme, the Central Government’s power to prescribe royalty computation, and the nature of explanations as merely clarificatory provisions, stressing judicial restraint and separation of powers. It held that the explanations are not unreasonable, arbitrary, or beyond the scope of the parent rules and therefore do not infringe Article 14. While upholding the validity of the explanations, the Court noted the acknowledged anomaly and directed the Ministry of Mines to complete the public consultation on amending the MMDR Act to address the compounding effect within two months. Consequently, the petition’s challenge was dismissed, but the respondents were given a specific direction to consider amendment.
Issues considered
- Whether the explanations appended to Rule 38 of the Mineral Concession Rules, 2016 and Rule 45 of the Mineral Conservation and Development Rules, 2017 are unreasonable and manifestly arbitrary, violating Article 14 of the Constitution.
- Whether the method of computing royalty that results in a compounding effect is arbitrary or exceeds the powers of the Central Government.
- Whether the differential treatment of coal (exclusion of royalty, DMF and NMET from sale value) compared to other minerals is unreasonable and violates the principle of equality.
Legislation cited
- Mineral (Auction) Rules, 2015
- Mineral Concession Rules, 1960s. Rule 64D
- Mineral Conservation and Development Rules, 2017s. Rule 45
- Mineral (Development and Regulation) Amendment Act, 2015
- Mineral (Other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016s. Rule 38, s. Rule 39, s. Rule 42
- Mines and Minerals (Contribution to District Mineral Foundation) Rules, 2015
- Mines and Minerals (Development and Regulation) Act, 1957s. 13, s. 18, s. 9
Subjects
RoyaltyExtraction or consumption of mined oresMode of computation of royaltyMethodology/formula of computation of royalty changedNot unreasonable or arbitraryNew mechanism/methodologyCompounding effect on rate of royalty for every subsequent monthCascading effectMining leasehold companyIron oresSale ValueMineral concessionDistrict Mineral Foundation (DMF)National Mineral Exploration Trust (NMET)Exclusion of royaltyDeduction of royalty, Payments to the DMF, NMET from gross amount for computing sale valueComputation of royalty for different mineralsPolicy matterPolicy decisionsPublic policyCompounding of royaltyAverage Sale PriceWise policyBetter public policyDomain of the executiveNatural resourcesEconomic policies/laws relating to economic activitiesMining leaseholdersPrinciple of separation of powersDoctrine of judicial restraintSubstantive merits of the policyJudicial reviewDecision making processLegalityPolicy making authorityRules of natural justiceExplanationAmbiguities in the statutory provisionAmbiguity in the main sectionDifferent mechanism for computation of royalty for coal and other minerals
Judgment
[2024] 12 S.C.R. 68 : 2024 INSC 848
Kirloskar Ferrous Industries Limited & Anr.
v.
Union of India & Ors.
(Writ Petition No. 715 of 2024)
07 November 2024
[Dr Dhananjaya Y Chandrachud, CJI,
J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Whether, the Explanation(s) appended to Rule 38 of the Mineral
(Other than Atomic and Hydrocarbons Energy Minerals) Concession
Rules, 2016 and Rule 45 of the Mineral Conservation and
Development Rules, 2017 respectively are unreasonable and
manifestly arbitrary and in consequence of violation of Article 14
of the Constitution.
Headnotes†
Mineral (Other than Atomic and Hydrocarbons Energy Minerals)
Concession Rules, 2016 – Explanation to r.38 – Mineral
Conservation and Development Rules, 2017 – Explanation
to r.45 – Validity challenged – Computation of royalty levied
for the extraction or consumption of mined ores – Change
in the methodology/formula of computation of royalty –
Compounding effect on the rate of royalty for every subsequent
month – Petitioner argued that the inclusion of the royalty and
contributions towards District Mineral Foundation (DMF) and
National Mineral Exploration Trust (NMET) paid previously
for computation of the requisite royalty for subsequent
months has a cascading effect on the rate of royalty for every
subsequent month – New methodology of computation of
royalty, if unreasonable or arbitrary:
Held: No – Merely because the methodology or formula for
computation of royalty has been altered from what it was under
the erstwhile MCR, 1960 will not make the new mechanism or
methodology unreasonable or arbitrary and liable to be struck
down – It is possible that at the relevant time in respect of some of
the minerals, royalty was being computed without inclusion of the
royalty, DMF and NMET contributions previously paid, however, that
*Author
[2024] 12 S.C.R. 69
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
does not mean that the Central Government’s power is restricted
and it cannot alter the mode of computation of royalty – Matters
such as computation of royalty or the levy of such royalty on
different minerals is entirely a matter of policy making beyond
the expertise and domain of the Courts – Whether a particular
policy is wise or a better public policy can be evolved is purely
the domain of the executive – Judicial review of policy decisions
is limited to assessing the legality of the decision making process
rather than the substantive merits of the policy itself – Court should
confine itself to the question of legality as to whether the policy
making authority exceeded its powers, or committed an error of
law or breached the rules of natural justice or reached a decision
which no reasonable authority would have reached or whether
it abused its powers – Though the mechanism for computation
of royalty in terms of r.38, MCR, 2016 and r.45, MCDR, 2017
might have onerous implications in monetary terms on the mining
leaseholders as there is a compounding effect on the rate of royalty
for every subsequent month however, in absence of anything to
show that the policy was in excess of the powers or domain of the
respondents or in breach of any statutory provision, it cannot be
struck down – Mineral (Development and Regulation) Amendment
Act, 2015. [Paras 50, 51, 61]
Economic policies/laws relating to economic activities –
Mineral (Development and Regulation) Amendment Act, 2015 –
Mineral (Other than Atomic and Hydrocarbons Energy Minerals)
Concession Rules, 2016 – Explanation to r.38 – Mineral
Conservation and Development Rules, 2017 – Explanation
to r.45 – Different mechanism for computation of royalty for
coal and other minerals – Whether the exclusion of royalty,
and contributions towards DMF and NMET paid previously for
coal but not for other minerals is unreasonable and manifestly
arbitrary:
Held: No – The exclusion of royalty, and contributions towards
DMF and NMET paid previously for coal but not for other minerals
cannot be termed as arbitrary or unreasonable, merely because
the computation for one differs from the other in certain aspects –
Deference needs to be shown to the legislature in deciding how
royalty must be computed in respect of different mineral grades/
concentrates – Although, the computation of royalty for different
minerals is purely a matter of policy yet, it cannot be ignored
that prima facie there is anomaly both in the very computation
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mechanism of average sale price for minerals and the perplexing
stance of exclusion of only coal from such mechanism despite the
general nature and application of the aforesaid rules – Also, the
legislature itself has acknowledged the anomaly in compounding
of royalty etc. for the purpose of computation of average sale
price – Respondents granted 2 months to conclude the public
consultation process undertaken by themselves for amending the
MMDR Act and take a final decisive call as regards the cascading
impact of royalty on royalty in the calculation of the ‘average sale
price’ by virtue of the Explanations to r.38 of the MCR, 2016 and
r.45 of the MCDR, 2017. [Paras 71, 76, 84]
Principle of separation of powers – Doctrine of judicial restraint:
Held: Each branch of government has a unique, defined role and
operates within its designated boundaries – Separation of powers
ensures that one branch does not encroach upon the functions
of the others, with checks and balances crucial to democratic
governance – Courts should respect the decisions made by
the legislative and executive branches, provided the decisions
are legally sound and constitutionally valid – Doctrine of judicial
restraint emphasizes that courts should exercise caution and avoid
involvement in policy decisions, as these are complex judgments
requiring a balancing of diverse and often competing interests –
Courts should not replace policymakers' judgments with their own
unless absolutely necessary. [Paras 52-54]
Policy decisions – Power of judicial review:
Held: Not absolute – Policy decisions often require the expertise
of professionals and specialists in fields such as economics, public
health, national security, and environmental science etc. – These
domains involve specialized knowledge that judges, as generalists
in legal matters, may lack – Judicial review does not mean a
comprehensive re-evaluation of the policy’s wisdom – It is limited
to assessing the legality of the decision-making process rather
than the substantive merits of the policy itself. [Para 56]
Interpretation of Statutes – Explanation(s) to r.38 of Mineral (Other
than Atomic and Hydrocarbons Energy Minerals) Concession
Rules, 2016 and r.45 of Mineral Conservation and Development
Rules, 2017 – Interpretation of Explanation – Aforesaid
Explanations, if exceeded the ambit of the main provisions:
[2024] 12 S.C.R. 71
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
Held: No – Explanation added to a statutory provision is not a
substantive provision – It is merely meant to explain or clarify
certain ambiguities which may have crept in the statutory provision
and thus, must be read so as to harmonise with and clear up the
ambiguity in the main section – An explanation does not either
restrict or extend the enacting part; it does not enlarge or narrow
down the scope of the original section that it is supposed to
explain – The construction of the explanation must depend upon
its terms, and no theory of its purpose can be entertained unless
it is to be inferred from the language used – An 'explanation' must
be interpreted according to its own tenor; that it is meant to explain
and not vice versa – Merely because the Explanations to r.38 of
the MCR, 2016 and r.45 of the MCDR, 2017 provides that there
shall be no deduction of royalty, payments to the DMF and NMET
from the gross amount for the purpose of computing sale value
does not make the aforesaid Explanation in derogation of the main
provision – The Explanations are merely clarificatory in nature
inasmuch as they explain the ambiguities in the main provisions
of r.38 of the MCR, 2016 and r.45 of the MCDR, 2017, and thus,
do not exceed the ambit of the main provisions or in contravention
of the statutory scheme. [Paras 65, 66]
Case Law Cited
Mineral Area Development Authority & Anr. v. Steel Authority of
India Limited & Anr. [2024] 8 SCR 540 : 2024 SCC OnLine SC
1974; Manish Kumar v. Union of India [2021] 14 SCR 895 : (2021)
5 SCC 1; Dy. Commissioner of Income Tax & Anr. v. Pepsi Foods
Limited [2021] 4 SCR 1 : (2021) 7 SCC 413; K.P. Varghese v.
ITO [1982] 1 SCR 629 : (1981) 4 SCC 173; Natural Resources
Allocation, In Re: Special Reference No. 1 of 2012 [2012] 9 SCR
311 : (2012) 10 SCC 1 – referred to.
M.P. Oil Extraction & Anr. v. State of Madhya Pradesh & Ors [1997]
Supp. 1 SCR 671 : (1997) 7 SCC 592; Premium Granites & Anr.
v. State of Tamil Nadu & Ors. [1994] 1 SCR 579 : (1994) 2 SCC
691; Delhi Science Forum and Others v. Union of India and Another
[1996] 2 SCR 767 : (1996) 2 SCC 405; Balco Employees’ Union v.
Union of India [2001] Supp. 5 SCR 511 : (2002) 2 SCC 333; State
of Punjab v. Principal Secretary to the Governor of Punjab & Anr.,
[2023] 15 SCR 777 : 2023 INSC 1017; State of U.P. v. Achal Singh
[2018] 9 SCR 912 : (2018) 17 SCC 578; R.K. Garg v. Union of
India [1982] 1 SCR 947 : (1981) 4 SCC 675; State of Tamil Nadu
72 [2024] 12 S.C.R.
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and Anr. v. National South Indian River Interlinking Agriculturist
Association [2021] 7 SCR 479 : (2021) 15 SCC 534; Tata Steel
Ltd. v. Union of India [2015] 6 SCR 29 : (2015) 6 SCC 193; State
of Jharkhand v. Brahmputra Metallics Ltd [2020] 14 S.C.R. 45 :
(2023) 10 SCC 634; Ramana Dayaram Shetty v. International Airport
Authority of India & Ors. [1979] 3 SCR 1014 : AIR 1979 SC 1628;
Narottam Kishore Deb Varma v. Union of India [1964] 7 SCR 55;
H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious
and Charitable Endowments Deptt. [1980] 1 SCR 368 : (1979) 4
SCC 642 – relied on.
List of Acts
Mines and Minerals (Development and Regulation) Act, 1957;
Mineral (Development and Regulation) Amendment Act, 2015;
Mineral (Other than Atomic and Hydrocarbons Energy Minerals)
Concession Rules, 2016; Mineral Conservation and Development
Rules, 2017; Mineral Concession Rules, 1960; Mines and Minerals
(Contribution to District Mineral Foundation) Rules, 2015; Mineral
(Auction) Rules, 2015; Constitution of India.
List of Keywords
Royalty; Extraction or consumption of mined ores; Mode of
computation of royalty; Methodology/formula of computation of
royalty changed; Not unreasonable or arbitrary; New mechanism/
methodology; Compounding effect on rate of royalty for every
subsequent month; Cascading effect; Mining leasehold company;
Iron ores; ‘Sale Value’; Mineral concession; Non-profit autonomous
body; District Mineral Foundation (DMF); National Mineral
Exploration Trust (NMET); Exclusion of royalty; Deduction of royalty,
Payments to the DMF, NMET from gross amount for computing sale
value; Computation of royalty for different minerals; Policy matter;
Policy decisions; Public policy; Compounding of royalty; Average
Sale Price; Wise policy; Better public policy; Domain of the executive;
Natural resources; Economic policies/laws relating to economic
activities; Mining leaseholders; Principle of separation of powers;
Doctrine of judicial restraint; Substantive merits of the policy; Judicial
review; Decision making process; Legality; Policy making authority;
Rules of natural justice; Explanation; Ambiguities in the statutory
provision; Ambiguity in the main section; Explanations clarificatory
in nature; Different mechanism for computation of royalty for coal
and other minerals; Indian Bureau of Mines.
[2024] 12 S.C.R. 73
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 715 of 2024
(Under Article 32 of The Constitution of India)
Appearances for Parties
Rakesh Dwivedi, Ms. Kiran Suri, Dr. A.M. Singhvi, Dhruv Mehta,
Yashraj Deora Singh, Sr. Advs., S.J. Amith, Mrs. Maria Carmita
Dcosta Mashelkar, Ms. Vidushi Garg, Eklavya Dwivedi, Ms. Preetika
Dwivedi, Dr. Mrs. Vipin Gupta, M/s. Legal Options, Ninad Laud,
M.S. Ananth, Ms. Aanchal Mullick, Ms. Kamakshi Sehgal, Siddharth
Seem, Abhinav Agrawal, Ms. Ranjeeta Rohatgi, Saket Sikri, Linette
Rodrigues, Ajay Pal Singh Kullar, Naveen Kumar, Tanmaya Agarwal,
Abhishek Gupta, Advs. for the Petitioners.
Shiv Mangal Sharma, AAG, Shailesh Madiyal, Sr. Adv., M/s. K J
John & Co., Gurmeet Singh Makker, Ms. Chinmayee Chandra,
Sridhar Potaraju, Veer Vikrant Singh, Shailesh Madiyal, Sandeep
Singh, Milind Kumar, Rohit K. Singh, Harsh V. Surana, Irshad
Ahmad, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1. The petitioners have invoked the jurisdiction of this Court under
Article 32 of the Constitution inter-alia seeking to challenge the validity
of the Explanation to Rule 38 of the Mineral (Other than Atomic and
Hydrocarbons Energy Minerals) Concession Rules, 2016 (for short,
the “MCR, 2016”) and the Explanation to Rule 45(8)(a) of the Mineral
Conservation and Development Rules, 2017 (for short, the “MCDR,
2017”) that stipulates the computation of royalty to be levied for the
extraction or consumption of mined ores.
A. BRIEF FACTUAL MATRIX
2. The petitioner no.1 herein is a mining leasehold company inter-alia
engaged in the extraction of pig iron and the manufacturing and sale
of its byproducts by way of a mining lease for iron ores in the State of
Karnatak in terms of the provisions and procedure envisaged under
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the Mineral (Development and Regulation) Amendment Act, 2015 (for
short the “2015 Amendment Act”). The petitioner no.2 herein is one
of the shareholders in the petitioner no.1 company. The respondent
no. 1 herein is the Union of India through the Secretary, Ministry of
Mines, whereas the respondent no. 2 herein is the Indian Bureau
of Mines.
3. As per Section 9 of the Mines and Minerals (Development and
Regulation) Act, 1957 (for short, the (“MMDR, Act”), the revenue
required to be paid for any mineral removed or consumed from the
leasehold area would be in the form of royalty and mandates the
mining leaseholder to pay such royalty as may be specified in the
Second Schedule in respect of any minerals removed or consumed
in the leased area allotted to him. Section 9 sub-section (3) of the
MMDR Act further empowers the Central Government to enhance
or reduce the rate of royalty payable by the leaseholders by way
of a notification once every 3-years. The aforesaid provision reads
as under: -
“9. Royalties in respect of mining leases. –
(1) The holder of a mining lease granted before the
commencement of this Act shall, notwithstanding anything
contained in the instrument of lease or in any law in force
at such commencement, pay royalty in respect of any
mineral removed or consumed by him or by his agent,
manager, employee, contractor or sub-lessee from the
leased area after such commencement, at the rate for the
time being specified in the Second Schedule in respect
of that mineral.
(2) The holder of a mining lease granted on or after the
commencement of this Act shall pay royalty in respect of
any mineral removed or consumed by him or by his agent,
manager, employee, contractor or sub-lessee from the
leased area at the rate for the time being specified in the
Second Schedule in respect of that mineral.
(2A) The holder of a mining lease, whether granted before
or after the commencement of the Mines and Minerals
(Regulation and Development) Amendment Act, 1972
[2024] 12 S.C.R. 75
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
(56 of 1972) shall not be liable to pay any royalty in respect
of any coal consumed by a workman engaged in a colliery
provided that such consumption by the workman does not
exceed one-third of a tonne per month.
(3) The Central Government may, by notification in the
Official Gazette, amend the Second Schedule so as to
enhance or reduce the rate at which royalty shall be
payable in respect of any mineral with effect from such
date as may be specified in the notification:
Provided that the Central Government shall not enhance
the rate of royalty in respect of any mineral more than
once during any period of three years.”
4. Section(s) 13 and 18 of the MMDR Act respectively further
empowers the Central Government to frame Rules for regulating
the grant of mineral concession and for the conservation and
systematic development of minerals respectively. Pursuant to the
above provisions, the Central Government enacted the Mineral
Concession Rules, 1960 (for short, the “MCR, 1960”) which later came
to be replaced by the MCR, 2016 for the computation and payment of
royalty in terms of Section 9 read with Schedule II of the MMDR, Act.
5. The erstwhile MCR, 1960, more particularly Rule 64D that was
inserted vide Notification bearing no. GSR 883(E) dated 10.12.2009,
stipulated that the royalty to be paid for all non-atomic and non-fuel
minerals would be computed on the basis of the State-wise sale
price of different minerals as published by the Indian Bureau of
Mines / the respondent no. 2. The said provision reads as under: -
“64 D. Manner of payment of royalty on minerals on
ad valorem basis:
(1) Every mine owner, his agent, manager, employee,
contractor or sub-lessee shall compute the amount
of royalty on minerals where such royalty is charged
on ad valorem basis as follows:
(i) for all non-atomic and non fuel minerals sold
in the domestic market or consumed in captive
plants or exported by the mine owners (other than
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bauxite and laterite despatched for use in alumina
and metallurgical industries, copper, lead, zinc, tin,
nickel, gold, silver and minerals specified under
Atomic Energy Act), the State-wise sale prices for
different minerals as published by Indian Bureau
of Mines shall be the sale price for computation
of royalty in respect of any mineral produced any
time during a month in any mine in that State, and
the royalty shall be computed as per the formula
given below:
Royalty = Sale price of mineral (grade wise and
State-wise) published by IBM X Rate of royalty
(in percentage) X Total quantity of mineral grade
produced/ dispatched:
Provided that if for a particular mineral, the information
for a State for a particular month is not published by
the Indian Bureau of Mines, the latest information
available for that mineral in the State shall be referred,
failing which the latest information for All India for the
mineral shall be referred.
(ii) for the grades of minerals produced for captive
consumption (other than bauxite and laterite
despatched for use in alumina and metallurgical
industries, copper, lead, zinc, tin, nickel, gold
and silver) and those not despatched for sale in
domestic market or export, the sale price published
by the Indian Bureau of Mines shall be used as the
benchmark price for computation of royalty.
(iii) for primary gold, silver, copper, nickel, tin, lead
and zinc, the total contained metal in the ore or
concentrate produced during the period for which
the royalty is computed and reported in the statutory
monthly returns under Mineral Conservation and
Development Rules, 1988 or recorded in the books of
the mine owners shall be considered for the purposes
of computing the royalty in the first place and then the
royalty shall be computed as the percentage of the
[2024] 12 S.C.R. 77
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
average metal prices published by the Indian Bureau
of Mines for primary gold, silver, copper, nickel, tin,
lead and zinc during the period of computation of
royalty as follows:
Royalty = sale price X rate of royalty in percentage
where sale price = Average price of metal as published
by Indian Bureau of Mines during the month X Total
contained metal in ore or concentrate produced X
Rupee or Dollar exchange rate selling as on the last
date of the month of computation of royalty:
Provided that in case of by-product gold and silver
the royalty shall be based on the total quantity of
metal produced and such royalty shall be calculated
as follows:
Royalty = Sale price X rate of royalty in percentage
Explanation - For the purpose of this sub-clause sale
price means, average price of metal as published
by Indian Bureau of Mines during the month X Total
byproduct metal actually produced X Rupee or Dollar
Exchange rate selling as on the last date of the month
of computation of royalty.
(iv) For bauxite or laterite ore despatched for use
in alumina and aluminium metal extraction or
despatched to alumina or aluminium metal extraction
industry within India, the total contained alumina in
the bauxite or laterite ore on dry basis produced
during the period for which the royalty is computed
and reported in the statutory monthly returns under
Mineral Conservation and Development Rules, 1988
or recorded in the books of the mine owners shall be
considered for the purpose of computing the royalty in
the first place and then the royalty shall be computed
as the percentage of the average monthly price for
the contained aluminium metal in the said alumina
content of the ore published by the Indian Bureau of
Mines, on the following basis namely:-
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Royalty =
52.9 X Percentage X Average X Rupee/ X Rate of
100 of Al2O3 in monthly dollar royalty (in
the bauxite price of exchange percentage)
on dry basis aluminium rate
(as reported as (selling)
in the published as on the
Statutory by the last date of
Monthly IBM the period
return under of the
MCDR) computation
of royalty
Provided that for computing the royalty for bauxite or
laterite despatched for end use other than alumina and
aluminium metal extraction and for exports provisions of
this clause shall not apply.
(2) In case of metallic ores based on metal contained
in ore and metal prices based on benchmark prices,
the royalty shall be charged on dry basis, and the
mine owner shall establish suitable facilities for
collection of sample and its analysis on dry basis
at the mine site.”
6. A bare perusal of the aforesaid provision makes it clear that for
computing the royalty that may be payable both the i) grade-wise
and State wise sale price of mineral as published by IBM and the ii)
rate of royalty were being factored along with the quantity of mineral
that is produced or dispatched in order to determine the ultimate
royalty that may be payable.
7. Thereafter, the Central Government by way of the aforesaid 2015
Amendment Act inter-alia inserted Section(s) 9B and 9C into the
MMDR Act whereby contributions were required to be paid to the
District Mineral Foundation (“DMF”), a non-profit body established
to work for the interest and benefit of persons and areas affected
by mining related operation and to the National Mineral Exploration
Trust (“NMET”) a non-profit autonomous body for the purposes of
regional and detailed exploration.
8. As per Section 9B sub-section (5) of the MMDR Act, the contributions
towards the DMF were computed as a percentage of the royalty paid
by the mining leaseholder that could extend upto a sum equivalent
[2024] 12 S.C.R. 79
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
to a maximum of one-third of such royalty. Thereafter, the Mines and
Minerals (Contribution to District Mineral Foundation) Rules, 2015
(“DMF Rules”) came to be enacted, Rule 2(a) of which stipulated
that the contributions towards DMF shall be computed as ten percent
of the royalty paid in accordance with the Second Schedule. On the
other hand, the contributions towards the NMET under Section 9C of
the MMDR Act, were calculated as a sum equivalent to two percent
of the royalty paid.
9. On 04.03.2016, the Central Government vide Notification no.
GSR 278(E) enacted and notified the MCR, 2016 rules replacing
the erstwhile rules of MCR, 1960, in order to revamp the entire
mechanism inter-alia for the calculation of royalty on minerals and
the grant of concessions.
10. Rule 38 of the MCR, 2016 defines the term ‘Sale Value’ as the gross
amount payable as per the sale invoice where the sale transaction
is on an arms’ length basis and such price is the sole consideration
for the sale excluding taxes. The Explanation appended to the said
rule further provides that for computation of ‘Sale Value’ there shall
no deduction in respect of royalty, payments or contributions towards
DMF and NMET. The relevant provision reads as under: -
“38. Sale Value. –
Sale value is the gross amount payable by the purchaser
as indicated in the sale invoice where the sale transaction
is on an arms’ length basis and the price is the sole
consideration for the sale, excluding taxes, if any.
Explanation - For the purpose of computing sale value no
deduction from the gross amount will be made in respect
of royalty, payments to the District Mineral Foundation
and payments to the National Mineral Exploration Trust.”
(Emphasis supplied)
11. Rule 39 sub-rule (3) of the MCR, 2016 further provides how royalty
is to be paid and the manner in which it is to be computed. It
stipulates that royalty in respect of any mineral is to be paid on an
Ad valorem basis. It further provides that royalty shall be calculated
at the specified percentage of the ‘average sale price’ of such mineral
for the month of removal / consumption as published by the Indian
Bureau of Mines.
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12. Rule 42 of the MCR, 2016 provides the manner in which the ‘average
sale price’ shall be computed. Rule 42 sub-rule (1) stipulates that
the average sale price of mineral grade / concentrate shall be
computed on the basis of its ‘ex-mine price’. Rule 42 sub-rule (3)
further provides that the ‘average sale price’ shall be the weighted
average of the ‘ex-mine price’ as computed in terms of sub-rule (2)
of Rule 42. Rule 42 sub-rule (2)(b) provides that the ‘ex-mine price’
shall be computed as the sale value of the mineral less the actual
expenditure incurred where the sale takes place domestically but
beyond the mining lease area. The said provision reads as under: -
“42. Computation of average sale price.
(1) The ex-mine price shall be used to compute average
sale price of mineral grade/concentrate.
(2) The ex-mine price of mineral grade or concentrate
shall be:
(a) where export has occurred, the free-on-board
(F.O.B) price of the mineral less the actual expenditure
incurred beyond the mining lease area towards
transportation charges by road, loading and unloading
charges, railway freight (if applicable), port handling
charges/export duty, charges for sampling and
analysis, rent for the plot at the stocking yard,
handling charges in port, charges for stevedoring
and trimming, any other incidental charges incurred
outside the mining lease area as notified by the Indian
Bureau of Mines from time-to-time, divided by the
total quantity exported.
(b) where domestic sale has occurred, sale value
of the mineral less the actual expenditure incurred
towards transportation loading, unloading, rent for
the plot at the stocking yard, charges for sampling
and analysis and any other charges beyond mining
lease area as notified by the Indian Bureau of Mines
from time-to-time, divided by the total quantity sold.
(c) where sale has occurred, between related parties
and/or where the sale is not on arms’ length basis,
then such sale shall not be recognized as a sale
[2024] 12 S.C.R. 81
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
for the purpose of this rule and in such case, sub-
clause (d) shall be applicable.
(d) where sale has not occurred, the average sale price
published monthly by the Indian Bureau of Mines for
that mineral grade / concentrate for a particular State:
Provided that if for a particular mineral grade / concentrate,
the information for a State for a particular month is not
published by the Indian Bureau of Mines, the last available
information published for that mineral grade / concentrate
for that particular State by the Indian Bureau of Mines in
the last six months previous to the reporting month shall
be used, failing which the latest information for All India
for the mineral grade / concentrate, shall be used.
(3) The average sale price of any mineral grade/
concentrate in respect of a month shall be the
weighted average of the ex-mine prices of the
non-captive mines, accordance with computed the
in above provisions, the weight being the quantity
dispatched from the mining lease area of mineral
grade I concentrate relevant to each ex-mine price.”
13. In other words, Rule 39(3) of the MCR, 2016 provides that royalty
would be calculated as the percentage of the average of the ‘Sale
Value’. The Sale Value of any graded mineral / concentrate for the
purposes of these rules in terms of Rule 38 is the gross amount
payable as per the sale invoice including the royalty, DMF and NMET
paid. This Sale Value minus the actual expenditure incurred (without
deducting the royalty, DMF and NMET in terms of the Explanation
to Rule 38) would be the ex-mine price of such mineral grade /
concentrate. The weighted average of this ‘ex-mine price’ shall be
the ‘Average Sale Price’ for the purposes of calculating royalty.
14. Similarly, under the Mineral Conservation and Development Rules,
2017 (for short, the “MCDR, 2017”) that was enacted by the Central
Government for the conservation and systematic development of
minerals in exercise of its powers under Rule 18 of the MMDR Act,
Rule 45(8)(b) provides that the ‘Sale Value’ for the purposes of the said
rules is the gross amount payable without any deduction in respect
of royalty, DMF and NMET paid. The said rule reads as under: -
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“45. Monthly and annual returns –
(8) In case of mining of minerals by the holder of a mining
lease, the –
(b) ex-mine price of mineral grade or concentrate shall be,–
(I) where export has occurred, the total of, sale value on
free-on-board (F.O.B) basis, less the actual expenditure
incurred beyond the mining lease area towards –
(i) transportation charges by road;
(ii) loading and unloading charges;
(iii) railway freight (if applicable);
(iv) port handling charges or export duty;
(v) charges for sampling and analysis;
(vi) rent for the plot at the stocking yard;
(vii) handling charges in port;
(viii) charges for stevedoring and trimming;
(ix) any other incidental charges incurred outside
the mining lease area as notified by the Indian
Bureau of Mines from time-to-time, divided by
the total quantity exported;
(II) where domestic sale of mineral has occurred, the total
of sale value of the mineral, less the actual expenditure
incurred towards loading, unloading, transportation, rent
for the plot at the stocking yard, charges for sampling and
analysis and any other charges beyond mining lease area
as notified by the Indian Bureau of Mines from time-to-
time, divided by the total quantity sold;
(III) where sale has occurred, between related parties and
is not on arms’ length basis, then such sale shall not be
recognised as a sale for the purposes of this rule and in
such case, sub-clause shall be applicable;
(IV) where the sale has not occurred, the average sale
price published monthly by the Indian Bureau of Mines for
that mineral grade or concentrate for a particular State:
[2024] 12 S.C.R. 83
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
Provided that if for a particular mineral grade or concentrate,
the information for a State for a particular month is not
published by the Indian Bureau of Mines, the last available
information published for that mineral grade or concentrate
for that particular State by the Indian Bureau of Mines in
the last six months previous to the reporting month shall
be referred, failing which the latest information for all India
for the mineral grade or concentrate, shall be referred;
(V) the per unit cost of production in case of captive mines.”
15. It is the case of the petitioners that, in view of the Explanation(s)
appended to the definition of ‘Sale Value’ in Rule 38 of the MCR,
2016 and Rule 45 of the MCDR, 2017, royalty which has already been
paid in the previous month is again being factored for the purposes of
computation of royalty to be paid for the subsequent months. Thus, it
is the contention of the petitioners that this “compounding” of royalty
by virtue of the aforesaid Explanations is manifestly arbitrary inasmuch
as it has led to a cascading effect within the fold of determination of
the rate of royalty under Section 9 sub-section (3) of the MMDR Act.
16. However, when it comes to computation of royalty in respect of coal,
it was submitted by the petitioners that the Central Government has
remedied the aforesaid anomaly by excluding the previously paid
royalty and contributions towards DMF and NMET in its calculation, by
way of an amendment vide Notification No. GSR 445(E) by inserting
an Explanation in Entry A, Item 10 in the Second Schedule of the
MMDR Act. The relevant provision reads as under: -
“Explanation:- For the purposes of this sub entry –
(iii)
(iv) Actual price means the sale invoice value of coal,
net of statutory dues including taxes, · contribution to
levies,· royalty, National Mineral Exploration Trust and
District Mineral Foundation ... “
17. The petitioners have contended that for the purposes of computation
of royalty there exists no intelligible differentia between coal and iron
ore and thus, the exclusion of royalty, DMF and NMET contributions
for computation of sale value for coal but not for other minerals such
as iron is manifestly arbitrary and the aforesaid Explanation(s) to
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Rule 38 of the MCR, 2016 and Rule 45 of the MCDR, 2017 is in
consequence of violation of Article 14 of the Constitution and liable
to be struck down.
18. During the course of hearing, our attention was also drawn to the
fact that on 25.05.2021, a notice was issued by a committee of
the Ministry of Mines inviting comments and suggestions from
all stakeholders on this issue of double calculation of royalty for
computation of the ‘average sale price’, and that after receiving the
responses, a report dated 31.01.2022 was submitted by the said
committee to the Ministry of Mines giving its recommendations on
the incidence of compounding royalty.
19. Although the aforesaid report has not been made publicly available,
yet the Ministry of Mines pursuant to the aforesaid report has issued
a Notice dated 25.05.2022 for public consultation on amending the
MMDR Act to bring reforms in the mining sector by inter-alia proposing
amendment to the relevant rules for removing the cascading impact
of royalty on royalty in the calculation of the ‘average sale price’. The
relevant portion of the aforesaid notice reads as under: -
“1. Calculation of ASP: Removing the cascading impact
of royalty on royalty
(iv) A committee was constituted by the Ministry of Mines
under chairmanship by Shri Praveen Kumar, /AS (Retd.)
with members from Ministry of Mines, NIT/ Aayog, Ministry
of Steel, Indian Bureau of Mines (IBM) and Indian Statistical
Institute to examine the incidence of double calculation
of royalty. The committee concluded that since the sale
value already includes royalty, DMF and NMET, the Jessee
pays royalty on royalty, DMF and NMET. Due to this, there
is an additional charge on the miners under the current
methodology.
(vi) Accordingly, it is proposed to (i) introduce new section
in the MMDR Act regarding ASP; (ii) the provision shall
specifically provide that ex-mine price for determination of
ASP shall exclude GST, export duty, royalty. DMF & NMET
& such other levies as may be prescribed; (iii) the change
will be applicable for all the MLs, whether auctioned/ granted
before or after the commencement of the proposed MMDR
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
Amendment Act, for the minerals removed or consumed
from the leased area after the commencement of the said
Act; and (iv) adoption of new formula only for the future
dues for existing MLs arising after the amendment”
20. The petitioners on the strength of the aforesaid notices issued by
the Ministry of Mines have contended that although the respondents
themselves have acknowledged the compounding of royalty in the
computation of ‘average sale price’ yet no action or amendment has
been made to the MMDR Act and the relevant rules thereunder in
this regard.
21. In such circumstances referred to above, the petitioners have come
up before this Court with the present writ petition.
B. SUBMISSIONS OF THE PETITIONER
22. Dr. A.M. Singhvi, the learned senior counsel for the petitioners
presented the statutory background to us in his submissions. He
submitted that Section 9(2) of the MMDR Act contemplates payment
of royalty at the rates specified in the Second Schedule to the MMDR
Act and that Section 9(3) of the MMDR Act affords revision of the
rates, but with a proviso restricting it to once every 3 years.
23. Dr. Singhvi apprised us of the fact that Section 13 of the MMDR
Act empowers the Government of India to make rules, inter alia,
with respect to the manner in which royalty shall be payable and
consequent to such powers, the MCR, 2016 have been enacted.
He submitted that Rule 39(3) of the MCR, 2016 provides that where
royalty is to be paid on ad valorem basis, it shall be calculated as a
specified percentage of the ASP as published by the Indian Bureau of
Mines for the month of removal/consumption. Moreover, he underlined
that Rule 42 provides for the manner of computation of the ASP, and
sub-rule (2)(b) thereof excludes the actual expenditure incurred from
the sale value, in its prescriptions of the manner of computation.
24. We were further apprised of the fact that the method to compute ASP
is in turn governed by Rule 38 of the MCR, 2016 which defines the
term “sale value” and the Explanation thereto which stipulates that
the royalty as well as the contributions made to DMF and NMET will
not be deducted while computing the “sale value”. He pointed out a
similar method of computation in Rule 45(8)(a) of the MCDR, 2017
which prescribes the manner of filing of monthly and annual returns.
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25. He submitted that the present petition seeks to challenge the
Explanation to Rule 38 of the MCR, 2016 and Explanation to
Rule 45(8)(a) of the MCDR, 2017 as they mandate the non-exclusion
of royalty and the contributions made to DMF and NMET, in the
computation of the “sale value”.
26. The learned senior counsel contended that the Impugned Explanations
lead to a situation where the royalty as well as payments to DMF and
NMET made previously, are included in the ASP, which, in turn, is used
as the basis to compute royalty for the next month. Such method of
computation of ASP effectively results in the payment of royalty as
well as DMF and NMET contributions not only on the value of the
ore/mineral, but also on the royalty, DMF and NMET contributions
paid in the previous month. Thus, there is an imposition of royalty on
a royalty. It was contended that the Impugned Explanations create
a twin charge on royalty: first, a charge on the value of the mineral
before payment of royalty at the prescribed rate; and, secondly, a
re-charge of royalty on royalty at a prescribed rate. It was submitted
that such re-charge of royalty on royalty is ultra vires to the scope
of Section 9(3) of the MMDR Act.
27. The learned senior counsel contended that the Impugned Explanations
are manifestly arbitrary for the following reasons:
(i) The present methodology for computing royalty leads to a
compounding or cascading effect as it creates a charge of
royalty on previous month’s royalty.
(ii) It has been held by a 9-Judge Bench of this Court in Mineral
Area Development Authority & Anr. v. Steel Authority of
India Limited & Anr. reported in 2024 SCC OnLine SC 1974
that royalty is a consideration for extracting minerals. Therefore,
such consideration cannot be compounded every month.
(iii) Rule 42(2)(b) of the MCR, 2016 excludes actual expenditure
incurred towards transportation, loading, unloading, rent for the
plot at the stocking yard, charges for sampling and analysis
and any other charges beyond mining lease area. However, the
impugned Explanations do not exclude royalty, DMF and NMET
contributions from such actual expenditure. It was contended
that royalty is also an expense as it has been excluded from
the category of taxes, therefore, it is illogical to not exclude the
same from the ex-mine price.
[2024] 12 S.C.R. 87
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
28. The learned senior counsel referred to the following judgments
pronounced by this Court to submit that manifest arbitrariness is a
well-recognized ground to challenge the validity of a legislation and
the same has been acknowledged as a facet of Article 14:
• Manish Kumar v. Union of India reported in (2021) 5 SCC 1;
• Dy. Commissioner of Income Tax & Anr. v. Pepsi Foods
Limited reported in (2021) 7 SCC 413.
29. Dr. Singhvi also submitted that there is no statutory prescription
for the inclusion of royalty, DMF and NMET contributions while
computing ASP. It is only the Impugned Explanations which save these
payments from being excluded thereby resulting in a compounding
or cascading effect.
30. We were informed by the learned senior counsel that this anomaly
has been noticed by the Government of India in a report of a
committee set up by the Ministry of Mines and a public notice
dated 25.05.2022 has been published to call for suggestions in
this regard. He submitted that the Ministry of Mines is charged with
administering the MMDR Act. Therefore, the Consultation Paper
of 2022, published by it is contemporeo exposito and is a valid aid
of construction of the relevant Rules and the Impugned Explanations
as per the dictum of this Court in K.P. Varghese v. ITO reported
in (1981) 4 SCC 173.
31. Furthermore, such anomaly was remedied by the Ministry of Coal
with respect to only coal by effecting an amendment to Schedule II
of the MMDR Act, which defined “actual price” for the purpose of
imposing royalty at ad valorem rates, to mean the sale invoice
value of coal, net of statutory dues including taxes, levies, royalty,
contribution to National Mineral Exploration Trust and District
Mineral Foundation. The learned senior counsel submitted that
remedying such anomaly for coal but not for iron ore creates a
classification which has no intelligible differentia and is in violation
of Article 14.
32. It was also submitted that lessees such as the petitioner herein, who
have secured a mine in an auction, also pay a premium in terms of
Rules 8 and 13(2) of the Mineral (Auction) Rules, 2015 respectively
which is calculated on the basis of the flawed definition of ASP.
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33. Dr. Singhvi while countering the submissions of the learned senior
counsel for the Union of India, submitted that the compounding or
cascading effect occurring every single month cannot come within
the fold of determination of the rate of royalty under Section 9(3) of
the MMDR Act, as it would be in contravention to the proviso thereto
which prohibits a change of rate of royalty for three years.
C. SUBMISSIONS OF THE RESPONDENT
34. Mr. Shailesh Madiyal, the learned ASG appearing on behalf of the
Union of India presented the scheme of the MMDR Act and the
MCR, 2016 in relation to the computation of royalty and submitted
that Section 9(1) of the MMDR Act requires the holder of a mining
lease to pay royalty in respect of the mineral being mined from the
lease area at the rate specified in Schedule II of the MMDR Act. He
apprised us of the fact that Section 9(3) permits the Government
of India to issue notifications to amend Schedule II to increase or
reduce the rate at which royalty is payable. He informed that the
rate of royalty for iron ore at present is 15% of average sale price
on ad valorem basis.
35. The learned ASG submitted that the computation of the ASP is to
be done on a monthly basis and as per Rule 42(3), the ASP of any
mineral grade/concentrate for a particular month shall be the weighted
average of the ex-mine prices of the non-captive mine. He submitted
that the ASP with respect to a particular month is unrelated to the
ASP of the previous month and there can be no cumulative effect
on the royalty charged.
36. It was submitted that Rule 42(2)(b) of the MCR, 2016 provided that
where domestic sale has occurred, the ex-mine price of a mineral
grade or concentrate is the “sale value” of the mineral less the actual
expenditure incurred towards transportation, loading and unloading,
etc. divided by the total quantity sold.
37. The learned senior counsel then proceeded to submit that the
term “sale value” is defined in Rule 38 of the MCR, 2016 and the
Explanation thereto provides that no deduction from the gross amount
will be made in respect of royalty, payments to the DMF and NMET.
38. Mr. Madiyal submitted that the writ petition, challenging the Impugned
Explanations, has been filed under Article 32 of the Constitution of
[2024] 12 S.C.R. 89
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
India and therefore, is not maintainable as the petitioner ought to
have approached the High Court under Article 226.
39. The learned senior counsel referred to the decision of a 5-Judge
Bench of this Court in the case of Natural Resources Allocation, In
Re: Special Reference No. 1 of 2012 reported in (2012) 10 SCC 1
to submit that the methodology pertaining to disposal of natural
resources is an economic policy entailing intricate economic choices.
Therefore, the manner of computation of royalty is a matter of policy
and must be left to the discretion of the executive and legislative
authorities, as the case may be.
40. The learned ASG that the petitioner’s challenge to the Impugned
Explanations does not meet the threshold of ‘manifest arbitrariness’
that is, whether an action was done or legislation was enacted
capriciously, irrationally and/or without adequate determining principle,
and cannot be excessive and disproportionate. He vehemently argued
that no evidence or data was provided by the petitioner to show that
the Impugned Explanations result in an endless monthly cumulative
exaction of royalty. He submitted that the ASP for a succeeding
month could in fact be lower than that of the previous month and
no consistent monthly cumulative effect was possible.
41. Mr. Madiyal also contended that at the time of the auction of mining
leases, the bids submitted are taking into consideration the existing
legal regime, which includes Rule 38 of the MCR, 2016 as well as the
Explanation thereto, and the bidders are aware that royalty and auction
premium is calculated on the basis of the sale value which is inclusive
of the royalty and contributions to DMF and NMET of the previous
month. He submitted that the revenue of a State comprises of the
royalty collected from such mining leases. Changing the methodology
of calculation of “sale value” by excluding the royalty payable for
mining leases which have already been auctioned would therefore,
result in loss of revenue to the States as estimated at the beginning
of the auctioning process. It was submitted that it is important that
the revenue of the state Governments should be protected.
42. He further submitted that there is no legal bar on the imposition of
royalty on royalty and cannot be adjudged on the same footing as a
case of “tax on tax”, in light of this Court’s decision in Mineral Area
Development Authority (supra) wherein it was held that royalty is
not a tax.
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43. On the status of public consultations, Mr. Madiyal submitted that
the Committee constituted by the Ministry of Mines has received
the views & suggestions from various stakeholders as well as from
the State Governments. However, the issue is under consideration
and no decision yet has been taken on the matter. The learned
ASG apprised us of the fact that the Committee is deliberating on
the question of the amendment of the Rules and the impact of such
amendment on the determination of royalty and auction premium
payable in respect of mining leases auctioned prior to the amendment,
if any carried out in the future.
D. ISSUE FOR DETERMINATION
44. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the pivotal question
of law that falls for our consideration: -
I. Whether, the Explanation(s) appended to Rule 38 of the
MCR, 2016 and Rule 45 of the MCDR, 2017 respectively are
unreasonable and manifestly arbitrary and in consequence of
violation of Article 14 of the Constitution?
E. ANALYSIS
45. Before, we proceed with the analysis, it is necessary to understand
the case of the petitioners in the present litigation as discernible from
their pleadings. The argument of the petitioners in sum is twofold: -
(i) First, that the very inclusion of the royalty, and contributions
towards DMF and NMET paid previously for the purpose of
computation of the requisite royalty for subsequent months is
manifestly arbitrary. The said mechanism of computation of
royalty has a cascading effect on the rate of royalty for every
subsequent month.
(ii) Secondly, the exclusion of the royalty, and contributions
towards DMF and NMET paid previously for coal but not for
other minerals such as iron ore for computation of royalty is
unreasonable and manifestly arbitrary. There exists no intelligible
differentia between coal and iron ore or any other similar mineral
and thus the act of the legislature in excluding the royalty, and
contributions towards DMF and NMET for one but not for the
other i.e., for coal but not for iron is in violation of Article 14
[2024] 12 S.C.R. 91
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
of the Constitution and thus, the Explanation(s) to Rule 38 of
the MCR, 2016 and Rule 45 of the MCDR, 2017 is liable to
be struck down.
i. Whether the manner or mechanism of computation of
royalty under the MCR, 2016 and MCDR, 2017 is manifestly
arbitrary?
46. In M.P. Oil Extraction & Anr. v. State of Madhya Pradesh & Ors,
reported in (1997) 7 SCC 592, this Court held that policy decisions
are the domain of the executive authority of the State and that the
courts should not embark on the unchartered ocean of public policy
and should not question the efficacy or otherwise of such policy so
long the same does not offend any provision of the stature or the
Constitution of India. It further observed that unless the policy framed
is absolutely capricious or not informed by reasons, the court cannot
and should not outstep its limit and tinker with the policy decision
of the executive functionary of the State. The relevant observations
read as under: -
"41. After giving our careful consideration to the facts and
circumstances of the case and to the submissions made by
the learned counsel for the parties, it appears to us that the
Industrial Policy of 1979 which was subsequently revised
from time to time cannot be held to be arbitrary and based
on no reason whatsoever but founded on mere ipse dixit
of the State Government of M.P. The executive authority
of the State must be held to be within its competence to
frame a policy for the administration of the State. Unless
the policy framed is absolutely capricious and, not being
informed by any reason whatsoever, can be clearly held to
be arbitrary and founded on mere ipse dixit of the executive
functionaries thereby offending Article 14 of the Constitution
or such policy offends other constitutional provisions or
comes into conflict with any statutory provision, the Court
cannot and should not outstep its limit and tinker with the
policy decision of the executive functionary of the State.
This Court, in no uncertain terms, has sounded a note of
caution by indicating that policy decision is in the domain
of the executive authority of the State and the Court should
not embark on the unchartered ocean of public policy
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and should not question the efficacy or otherwise of such
policy so long the same does not offend any provision of
the stature or the Constitution of India. The supremacy
of each of the three organs of the State i.e. legislature,
executive and judiciary in their respective fields of operation
needs to be emphasised. The power of judicial review of
the executive and legislative action must be kept within
the bounds of constitutional scheme so that there may
not be any occasion to entertain misgivings about the
role of judiciary in outstepping its limit by unwarranted
judicial activism being very often talked of in these days.
The democratic set-up to which the polity is so deeply
committed cannot function properly unless each of the
three organs appreciate the need for mutual respect and
supremacy in their respective fields.”
(Emphasis supplied)
47. Similarly, in Premium Granites & Anr. v. State of Tamil Nadu &
Ors. reported in (1994) 2 SCC 691, this Court observed that it is
not the domain of the courts to consider as to whether a particular
policy is wise or that a better public policy can be evolved, and that
such matters must be left to the discretion of the executive and
legislature. The relevant observations read as under: -
"54. It is not the domain of the Court to embark upon
unchartered ocean of public policy in an exercise to
consider as to whether the particular public policy is wise
or a better, public policy can be evolved. Such exercise
must be left to the discretion of the executive and legislative
authorities as the case may be. …”
(Emphasis supplied)
48. In yet one another decision of this Court in Delhi Science Forum
and Others v. Union of India and Another reported in (1996) 2
SCC 405 it was observed that the courts should not express opinion
as to whether a particular policy should be adopted or not, and no
such direction can be given unless they pertain to the implementation
of any policy as a result of which there is a violation or infringement
of any constitutional or statutory provision. The relevant observations
read as under: -
[2024] 12 S.C.R. 93
Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
“7. What has been said in respect of legislations is
applicable even in respect of policies which have been
adopted by Parliament. They cannot be tested in Court of
Law. The courts cannot express their opinion as to whether
at a particular juncture or under a particular situation
prevailing in the country any such national policy should
have been adopted or not. There may be views and views,
opinions and opinions which may be shared and believed
by citizens of the country including the representatives of
the people in Parliament. But that has to be sorted out in
Parliament which has to approve such policies. Privatisation
is a fundamental concept underlying the questions about
the power to make economic decisions. What should be
the role of the State in the economic development of the
nation? How the resources of the country shall be used?
How the goals fixed shall be attained? What are to be the
safeguards to prevent the abuse of the economic power?
What is the mechanism of accountability to ensure that
the decision regarding privatisation is in public interest?
All these questions have to be answered by a vigilant
Parliament. Courts have their limitations because these
issues rest with the policy-makers for the nation. No
direction can be given or is expected from the courts
unless while implementing such policies, there is violation
or infringement of any of the constitutional or statutory
provision. The new Telecom policy was placed before
Parliament and it shall be deemed that Parliament has
approved the same. This Court cannot review and examine
as to whether the said policy should have been adopted.
Of course, whether there is any legal or constitutional
bar in adopting such policy can certainly be examined by
the Court”.
(Emphasis supplied)
49. In Balco Employees’ Union v. Union of India reported in (2002) 2
SCC 333 this Court held that it is not for the courts to consider the
relative merits of different economic policies and consider whether
a better policy may be evolved. It further held that when it comes
to policy decisions on economic matters, the courts ought to be
very circumspect in disturbing such conclusions unless there is
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an illegality in the decision itself. The relevant observations read
as under: -
“93. Wisdom and advisability of economic policies are
ordinarily not amenable to judicial review unless it can be
demonstrated that the policy is contrary to any statutory
provision or the Constitution. In other words, it is not for
the Courts to consider relative merits of different economic
policies and consider whether a wiser or better one can
be evolved. For testing the correctness of a policy, the
appropriate forum is the Parliament and not the Courts.
xxx xxx xxx
98. In the case of a policy decision on economic matters,
the Courts should be very circumspect in conducting
any enquiry or investigation and must be most reluctant
to impugn the judgement of the experts who may have
arrived at a conclusion unless the Court is satisfied that
there is illegality in the decision itself.”
(Emphasis supplied)
50. It is possible that at the relevant time in respect of some of the
minerals, royalty was being computed without inclusion of the royalty,
DMF and NMET contributions previously paid, however, that does not
mean that the Central Government’s power is restricted and that the
Central Government cannot alter the mode of computation of royalty.
Merely, because the methodology or formula for computation of royalty
has been altered from what it was under the erstwhile MCR, 1960
will not make the new mechanism or methodology unreasonable or
arbitrary and liable to be struck down.
51. From the above conspectus of decisions referred to by us, it is
clear that the whether a particular policy is wise or that a better
public policy can be evolved is purely the domain of the executive
of the state. Matters such as computation of royalty or the levy
of such royalty on different minerals is entirely a matter of policy
making which is beyond the expertise and domain of the courts. It
is no longer res-integra, that a question as regards the validity of a
particular policy is concerned with reviewing not the merits of such
decision or policy, but the very policy making process itself. The
duty of the courts is to confine itself to the question of legality and
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
its concern should be whether a policymaking authority exceeded
its powers, whether it committed an error of law or committed a
breach of the rules of natural justice or reached a decision which
no reasonable authority would have reached or whether it has
abused its powers.
52. In a constitutional democracy, each branch of government—executive,
legislative, and judiciary — has a defined role and operates within
its designated boundaries. This separation of powers ensures that
one branch does not encroach upon the functions of the others,
preserving a system of checks and balances crucial to democratic
governance. Within this framework, courts are primarily responsible for
interpreting and upholding the law, while the executive and legislature
hold the mandate to formulate and implement policy. This division is
essential, as it aligns with the principle that policy-making, particularly
in areas requiring specialized knowledge, foresight, and discretion,
should remain within the domain of the elected representatives and
those with the requisite expertise.
53. Judicial restraint is rooted in the understanding that courts should
respect the decisions made by the legislative and executive branches,
provided these decisions are legally sound and constitutionally valid.
By adhering to judicial restraint, courts avoid overstepping their
constitutional role and thereby prevent potential conflicts with the
executive and legislative branches. The principle of separation of
powers supports the idea that each branch has a unique role, and
mutual respect between these branches is essential for the proper
functioning of government. The courts are to ensure that laws and
policies do not infringe upon citizens’ rights or exceed the authority
granted by law. However, this role does not extend to evaluating
whether a policy is “wise” or whether a better one could be devised,
and rather this process is entrusted to the legislature and executive,
which have the expertise to make these determinations.
54. The doctrine of judicial restraint, which is central to this discussion,
emphasizes that courts should exercise caution and avoid involvement
in policy decisions, as these are complex judgments that require
a balancing of diverse and often competing interests. Policies are
crafted based on thorough analysis of social, economic, and political
factors, considerations beyond the court’s purview. The court is tasked
with ensuring that policies do not breach constitutional provisions
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or statutory limits; however, they should not replace policymakers’
judgments with their own unless absolutely necessary.
55. Policy decisions often require the expertise of professionals and
specialists in fields such as economics, public health, national security,
and environmental science. These domains involve specialized
knowledge that judges, as generalists in legal matters, may lack.
For instance, in economic policy, the executive may decide on trade
tariffs or subsidies based on extensive data and projections that aim
to balance domestic industry support with global trade commitments.
The courts, lacking the same level of economic expertise and without
the authority to make trade-offs among competing policy objectives,
is typically not equipped to second-guess these kinds of decisions.
56. While courts have the power of judicial review to ensure that executive
actions and legislative enactments comply with the Constitution,
this power is not absolute. Judicial review is meant to act as a
safeguard against actions that overstep legal boundaries or infringe
on fundamental rights, but it does not entail a comprehensive
re-evaluation of the policy’s wisdom. The judicial review of policy
decisions is limited to assessing the legality of the decision-making
process rather than the substantive merits of the policy itself. For
example, if a government policy infringes on fundamental rights or
discriminates against a particular group, the courts have a duty to
strike down such policies. However, in the absence of constitutional
or legal violations, the courts should respect the policy choices made
by the executive or legislature.
57. The duty of the court in policy-related cases is primarily to determine
whether the policy falls within the scope of the authority granted to
the relevant body. If the policy decision is within the executive’s legal
authority and has been made following proper procedures, the courts
should defer to the expertise and discretion of the policy-makers,
even if the policy appears unwise or imprudent. This restraint ensures
that the courts do not impose its own perspective on policy matters
that are rightly the responsibility of other branches.
58. Economic and social policies often involve significant redistribution
of resources, prioritization of interests, and balancing of public
needs, which requires careful consideration by those with specialized
knowledge and broad perspectives. In the realm of economic policy,
for instance, questions regarding the allocation of subsidies, fiscal
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
deficits, or budget allocations are best managed by the executive,
which has access to economic data and is accountable to the public
for its financial management. Judicial interference in such areas risks
creating disruptions in the economic balance that policy-makers are
trying to achieve.
59. Courts should assume that policy-makers act in good faith unless
there is clear evidence to the contrary. As long as the policy does not
contravene the Constitution or violate statutory provisions, it is not the
role of the courts to question the wisdom or fairness of such policy.
60. While judicial restraint is essential in respecting the boundaries of
each branch of government, it does not mean that courts abdicate
their responsibility to protect constitutional rights. The courts must
still intervene if a policy infringes on fundamental rights, discriminates
unfairly, or breaches statutory provisions. The role of the court in such
instances is to protect individuals and groups from unlawful actions
while maintaining the overall integrity of the policy-making process.
This balance ensures that while courts do not interfere in matters of
policy wisdom, they remain vigilant guardians of constitutional rights.
61. In the present case, there is no doubt that the mechanism for
computation of royalty in terms of Rule 38 of the MCR, 2016 and
Rule 45 of the MCDR, 2017 devised by the respondents might have
onerous implications in monetary terms on the mining leaseholders
inasmuch as there is a compounding effect on the rate of royalty
for every subsequent month. However, this Court in the absence
of anything to show that such policy is in excess of the powers
or domain of the respondents herein or in breach of any statutory
provision, cannot strike down the same.
62. It was argued by the petitioners, that here is no statutory prescription for
the inclusion of royalty, DMF and NMET contributions while computing
ASP. In other words, but for these Explanations, there would be no
compounding or cascading effect in the computation of royalty.
63. This Court in State of Punjab v. Principal Secretary to the Governor
of Punjab & Anr. reported in 2023 INSC 1017 it was held that a
proviso may be in the form of an exception or in the form of an
explanation or in addition to the substantive provision of a statute.
The relevant observations read as under: -
"22. A proviso, as is well settled, may fulfil the purpose
of being an exception. Sometimes, however, a proviso
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may be in the form of an explanation or in addition to the
substantive provision of a statute. [...]”
64. Similarly in State of U.P. v. Achal Singh, reported in (2018) 17
SCC 578 this Court reiterated that an Explanation becomes part of
the main section and can be read as proviso and be understood as
explaining the scope of the main provision. The relevant observations
read as under: -
“19. Reliance was also placed on the decision rendered
by this Court in State of Bombay v. United Motors (India)
Ltd. [State of Bombay v. United Motors (India) Ltd. (1953)
1 SCC 514 : AIR 1953 SC 252] and Bengal Immunity Co.
Ltd. v. State of Bihar [Bengal Immunity Co. Ltd. v. State of
Bihar, AIR 1955 SC 661] , in which it has been observed
that Explanation can be read as proviso and it explains
the scope of the main provision and the Explanation
becomes part of the main section. There is no dispute
with the aforesaid proposition. The Explanation in the
Rules in question has to be applied to both the situations
as contemplated in Rule 56(c) and is applicable to both
the exigencies not only when the Government decides to
retire an employee, but also applicable where voluntary
retirement is sought by an employee. It cannot be said that
no further restriction by Explanation has been added in a
case where an employee has decided to obtain voluntary
retirement. The public interest is the prime consideration
on which authority has to decide such a prayer as per the
rules applicable in the State of Uttar Pradesh.”
(Emphasis supplied)
65. What can be discerned from the above is that an Explanation must
be read so as to harmonise with and clear up any ambiguity in the
main section. It should not be so construed as to widen the ambit of
the section. An explanation does not enlarge the scope of the original
section that it is supposed to explain. It is axiomatic that an explanation
only explains and does not expand or add to the scope of the original
section. The purpose of an explanation is, however, not to limit the
scope of the main provision. The construction of the explanation must
depend upon its terms, and no theory of its purpose can be entertained
unless it is to be inferred from the language used. An ‘explanation’ must
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
be interpreted according to its own tenor. Sometimes an explanation is
appended to stress upon a particular thing which ordinarily would not
appear clearly from the provisions of the section. The proper function
of an explanation is to make plain or elucidate what is enacted in
the substantive provision and not to add or subtract from it. Thus, an
explanation does not either restrict or extend the enacting part; it does
not enlarge or narrow down the scope of the original section that it is
supposed to explain. The Explanation must be interpreted according to
its own tenor; that it is meant to explain and not vice versa. Explanation
added to a statutory provision is not a substantive provision in any
sense of the term but as the plain meaning of the word itself shows
it is merely meant to explain or clarify certain ambiguities which may
have crept in the statutory provision.
66. Merely because the Explanation(s) to Rule 38 of the MCR, 2016 and
Rule 45 of the MCDR, 2017 provides that there shall be no deduction
of royalty, payments to the District Mineral Foundation and payments
to the National Mineral Exploration Trust from the gross amount for
the purpose of computing sale value does not in any manner makes
the aforesaid Explanation in derogation of the main provision. The
aforesaid Explanation(s) are merely clarificatory in nature inasmuch
as it explains the ambiguities in the main provisions of Rule 38 of
the MCR, 2016 and Rule 45 of the MCDR, 2017, and thus, they
cannot be said to exceed the ambit of the main provisions or in
contravention of the statutory scheme.
ii. Whether the exclusion of royalty, and contributions towards
DMF and NMET paid previously for coal but not for other
minerals is unreasonable and manifestly arbitrary?
67. In R.K. Garg v. Union of India reported in (1981) 4 SCC 675, this
Court observed that laws relating to economic activities should be
viewed with greater latitude and the legislature should be allowed
some play in the joints, because it has to deal with complex problems
which do not admit of solution through any doctrinaire or strait-jacket
formula. The relevant observations read as under: -
"8. Another rule of equal importance is that laws relating to
economic activities should be viewed with greater latitude
than laws touching civil rights such as freedom of speech,
religion, etc. It has been said by no less a person than
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Holmes, J. that the legislature should be allowed some play
in the joints, because it has to deal with complex problems
which do not admit of solution through any doctrinaire or
strait-jacket formula and this is particularly true in case of
legislation dealing with economic matters, where, having
regard to the nature of the problems required to be dealt
with, greater play in the joints has to be allowed to the
legislature. The court should feel more inclined to give
judicial deference to legislative judgment in the field of
economic regulation than in other areas where fundamental
human rights are involved.”
(Emphasis supplied)
68. Similarly in State of Tamil Nadu and Anr. v. National South Indian
River Interlinking Agriculturist Association reported in (2021)
15 SCC 534 it was held that courts should show a higher degree
of deference to matters concerning economic policy. The relevant
observations read as under: -
"11. … It is also settled that the Courts would show
a higher degree of deference to matters concerning
economic policy, compared to other matters of civil and
political rights. …”
69. While examining the challenge to the validity of laws relating to
economic activities, the courts must be slow and circumspect. A
higher degree of deference needs to be shown in such matters,
and sufficient flexibility should be given to the legislature and the
executive in dealing with economic matters. Complex issues of
economic and fiscal nature cannot be construed by any strait-jacket
formula or unidirectional approach. This Court has time and again
recognised that a judicial hands-off approach must be followed qua
economic legislation and that the legislature is to be allowed wide
latitude in experimenting with economic legislation, by virtue of it
being an extension of the Government’s economic policy.
70. Since the MMDR Act and the rules thereunder pertain to the extraction,
disposal and sale of natural resources which is an economic policy
that entails intricate economic choices and have a direct effect on
the macroeconomics, we are of the considered opinion that when it
comes to computation of royalty the legislature must have greater
play in the joints.
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
71. The exclusion of royalty, and contributions towards DMF and NMET
paid previously for coal but not for other minerals cannot be termed
as arbitrary or unreasonable, merely because the computation for
one differs from the other in certain aspects. Deference needs to be
shown to the legislature in deciding how royalty must be computed
in respect of different mineral grades / concentrates.
72. However, the present petition particularly the challenge to the validity
of the Explanation(s) to Rule 38 of the MCR, 2016 and Rule 45 of
the MCDR, 2017 is unique in its own way. While there is nothing
to show that such policy is in excess of the powers or domain of
the respondents herein or in breach of any statutory provision, at
the same time, we should not ignore or overlook the fact that the
legislature itself has acknowledged the anomaly in compounding of
royalty etc. for the purpose of computation of average sale price.
73. Similarly, though the discretion to exclude previously paid royalty and
contributions for coal but not for other minerals cannot be approached
in a rigid manner and it would be incorrect to import policies framed
and tailored by the executive for one particular subject-area and
blanketly apply it to other related subject-areas, as it is the executive
which is best suited to determine the fine distinctions existing between
interlacing or seemingly similar domains and formulate distinct policies
to best factor in the dissimilarities.
74. However, this Court in Tata Steel Ltd. v. Union of India, reported
in (2015) 6 SCC 193 while examining Rule 64B of the erstwhile
MCR, 1960 has observed that the aforesaid rules were general in
nature and applicable to types of minerals including coal. This Court
rejected the categorization of coal on a different pedestal from other
minerals under the MMDR Act for the purpose of levy of royalty. The
relevant observations read as under: -
"70. There is nothing to indicate in Rule 64-B and Rule
64-C of the MCR that coal has been put on a different
pedestal from other minerals mentioned in the MMDR Act
read with the Second Schedule thereto. It is, therefore,
difficult to accept the view canvassed by the Union of India
that these Rules “may not be particularly applicable on
coal minerals”. That apart, the stand of the Union of India
is not definite or categorical (“may not be”). In any event,
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we are not bound to accept the interpretation given by the
Union of India to Rule 64-B and Rule 64-C of the MCR as
excluding only coal. On the contrary, in NMDC [National
Mineral Development Corpn. Ltd. v. State of M.P. (2004)
6 SCC 281] this Court has observed that these Rules are
general in nature, applicable to all types of minerals, which
includes coal. The expression of opinion by the Union of
India is contrary to the observations of this Court.
71. Therefore, on a plain reading of Rule 64-B and Rule
64-C of the MCR, we are of the opinion that with effect
from 25-9-2000 when these Rules were inserted in the
MCR, royalty is payable on all minerals including coal at
the stage mentioned in these Rules, that is, on removal of
the mineral from the boundaries of the leased area. For the
period prior to that, the law laid down in Central Coalfields
Ltd. [Central Coalfields Ltd. v. State of Jharkhand, Civil
Appeal No. 8395 of 2001 decided by three learned Judges
on 24-9-2003. Ed. : Now reported at (2015) 6 SCC 220.]
will operate, as far as coal is concerned, from 10-8-1998
when SAIL [State of Orissa v. SAIL (1998) 6 SCC 476]
was decided, though for different reasons.”
(Emphasis supplied)
75. Even the respondents herein appear to have acknowledged that the
differing mechanism for computation of royalty for coal and other
minerals is not based on any fine distinction between the two, but
rather an anomaly in the MCR, 2016 and MCDR, 2017, which is why
it constituted a committee to look into the same and has proposed
amendments for rectifying the same.
76. In view of the fact that the appropriate authorities are actively
considering the issue of compounding royalties in the computation of
average sale price for all other minerals, and the fact that a notice for
public consultation on amending the MMDR Act to inter-alia address
the aforementioned issue, we may not say anything further as regards
whether the Explanation(s) to Rule 38 of the MCR, 2016 and Rule 45
of the MCDR, 2017 are manifestly arbitrary or not. Although, the
computation of royalty for different minerals is purely a matter of policy
yet we should not just shut our eyes to the prima-facie anomaly that
exists both in the very computation mechanism of average sale price
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
for minerals in terms of the aforesaid provisions and the perplexing
stance of exclusion of only coal from such mechanism despite the
general nature and application of the aforesaid rules.
77. However, we intend to grant one last opportunity to the respondents
herein to seriously consider the mechanism of computation of average
sale for the purposes of determining the rate of royalty for all other
minerals in terms of the Explanation(s) to Rule 38 of the MCR,
2016 and Rule 45 of the MCDR, 2017. We direct the respondents
to conclude the process of public consultation in respect of the
compounding of royalties and take a well-meaning decision keeping
in mind the representations made by the petitioners herein.
78. We may remind the respondents that, it cannot continue to keep the
aforesaid issue in limbo on the pretext of ongoing process of public
consultation process. In this regard, we may refer to the decision
in State of Jharkhand v. Brahmputra Metallics Ltd., reported in
(2023) 10 SCC 634, wherein the following observations of this Court
are significant: -
"50. It is one thing for the State to assert that the writ
petitioner had no vested right but quite another for the
State to assert that it is not duty-bound to disclose its
reasons for not giving effect to the exemption notification
within the period that was envisaged in the Industrial
Policy, 2012. Both the accountability of the State and the
solemn obligation which it undertook in terms of the policy
document militate against accepting such a notion of State
power. The State must discard the colonial notion that it is a
sovereign handing out doles at its will. Its policies give rise
to legitimate expectations that the State will act according
to what it puts forth in the public realm. In all its actions,
the State is bound to act fairly, in a transparent manner.
This is an elementary requirement of the guarantee against
arbitrary State action which Article 14 of the Constitution
adopts. A deprivation of the entitlement of private citizens
and private business must be proportional to a requirement
grounded in public interest. This conception of State power
has been recognised by this Court in a consistent line of
decisions. As an illustration, we would like to extract this
Court’s observations in National Buildings Construction
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Corpn. [National Buildings Construction Corpn. v.
S. Raghunathan (1998) 7 SCC 66 : 1998 SCC (L&S)
1770] : (SCC p. 75, para 18)
“18. … The Government and its departments,
in administering the affairs of the country, are
expected to honour their statements of policy
or intention and treat the citizens with full
personal consideration without any iota of abuse
of discretion. The policy statements cannot
be disregarded unfairly or applied selectively.
Unfairness in the form of unreasonableness is
akin to violation of natural justice.””
(Emphasis supplied)
79. We may also remind the respondents of one another decision of
this Court in Ramana Dayaram Shetty v. International Airport
Authority of India & Ors. reported in AIR 1979 SC 1628 wherein
it was held that an executive authority must be rigorously held to the
standard by which it professes its actions to be judged. The relevant
observations read as under: -
"10. [...] It is a well-settled rule of administrative law that
an executive authority must be rigorously held to the
standards by which it professes its actions to be judged
and it must scrupulously observe those standards on pain
of invalidation of an act in violation of them. [...]”
(Emphasis supplied)
80. Once the respondents have themselves initiated a public consultation
process for amending the MMDR Act to inter-alia address the
aforementioned anomaly in computation of royalty, they must take a
prompt decision in this regard. Merely because it has the discretion to
take such policy decision does not mean that it can endlessly keep on
prolonging the decision-making process whereby the very discretion
is rendered ad-lib and the issue in itself a forgone conclusion.
81. Before, we close this matter, we must make a reference to the decision
in Narottam Kishore Deb Varman v. Union of India, reported in
(1964) 7 SCR 55 wherein this Court was called upon to decide a
batch of petitions challenging the validity of Section 87B of the Code
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
of Civil Procedure, 1908. In the said decision, although this Court
stopped short from holding the provision as unconstitutional yet it
called upon the government to examine if the provision was to be
allowed to continue for all times to come. It further observed that
the considerations on which the validity of the provision is founded
will wear out with the passage of time and may later become open
to a serious challenge. The relevant observations read as under: -
"11. Before we part with this matter, however, we would
like to invite the Central Government to consider seriously
whether it is necessary to allow Section 87-B to operate
prospectively for all time. The agreements made with
the Rulers of Indian States may, no doubt, have to be
accepted and the assurances given to them may have to
be observed. But considered broadly in the light of the basic
principle of the equality before law, it seems somewhat
odd that Section 87-B should continue to operate for all
time. For past dealings and transactions, protection may
justifiably be given to Rulers of former Indian States; but
the Central Government may examine the question as to
whether for transactions subsequent to 26th of January,
1950, this protection need or should be continued. If
under the Constitution all citizens are equal, it may be
desirable to confine the operation of Section 87-B to past
transactions and not to perpetuate the anomaly of the
distinction between the rest of the citizens and Rulers
of former Indian States. With the passage of time, the
validity of historical considerations on which Section 87-B
is founded will wear out and the continuance of the said
section in the Code of Civil Procedure may later be open
to serious challenge.”
(Emphasis supplied)
82. Similarly in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu
Religious and Charitable Endowments Deptt., reported in (1979) 4
SCC 642, this Court was called upon to determine the constitutionality
of application of the Madras Hindu Religious Charitable Endowments
Act to South Kanara District. This Court observed that even after the
passage of 23 years, no serious attempts were made to remove the
inequality that was being caused in the South Kanara District by the
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said Act. However, this Court while refraining itself from declaring the
law as inapplicable, called upon the legislature look into the issue in
the hope that it would act promptly, lest the said Act suffer a serious
and successful challenge in the not-so-distant future. The relevant
observations read as under: -
“31. But that is how the matter stands today. Twenty-three
years have gone by since the States Reorganisation Act
was passed but unhappily, no serious effort has been made
by the State Legislature to introduce any legislation — apart
from two abortive attempts in 1963 and 1977 — to remove
the inequality between the temples and Mutts situated in
the South Kanara Disrict and those situated in other areas
of Karnataka. Inequality is so clearly writ large on the face
of the impugned statute in its application to the district of
South Kanara only, that it is perilously near the periphery
of unconstitutionality. We have restrained ourselves from
declaring the law as inapplicable to the district of South
Kanara from today but we would like to make it clear that
if the Karnataka Legislature does not act promptly and
remove the inequality arising out of the application of the
Madras Act of 1951 to the district of South Kanara only, the
Act will have to suffer a serious and successful challenge
in the not distant future. We do hope that the Government
of Karnataka will act promptly and move an appropriate
legislation, say, within a year or so. A comprehensive
legislation which will apply to all temples and Mutts in
Karnataka, which are equally situated in the context of
the levy of fee, may perhaps afford a satisfactory solution
to the problem. This, however, is a tentative view-point
because we have not investigated whether the Madras
Act of 1951, particularly Section 76(1) thereof, is a piece
of hostile legislation of the kind that would involve the
violation of Article 14. Facts in regard thereto may have
to be explored, if and when occasion arises."
(Emphasis supplied)
83. In view of the decisions referred to above, we may only say that
since the respondents herein are already in seisin of the anomaly
in computation of royalty and the policy is being reconsidered on
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Kirloskar Ferrous Industries Limited & Anr v. Union of India & Ors.
the grounds raised by the petitioners herein, we do not say anything
further as regards the provisions in question other than what we have
observed. We clarify that this decision shall not preclude the petitioners
from challenging the final policy decision that the respondents may
take on completion of the ongoing consultation process.
F. CONCLUSION
84. In view of the aforesaid, we grant the respondents a period of
2-months from the date of pronouncement of this judgment to
conclude the public consultation process undertaken for amending
the MMDR Act initiated pursuant to the Notice dated 25.05.2022 and
take a final decisive call in regard to the cascading impact of royalty
on royalty in the calculation of the ‘average sale price’ by virtue of
the Explanation(s) to Rule 38 of the MCR, 2016 and Rule 45 of the
MCDR, 2017.
85. The challenge to the validity of Explanation(s) appended to Rule 38
of the MCR, 2016 and Rule 45 of the MCDR, 2017 is answered
accordingly.
86. The Registry shall notify this matter before an appropriate Bench
after a period of two months from the date of pronouncement of this
judgment to report compliance of our directions.
Result of the case: Matter to be notified to report compliance of
directions.
†
Headnotes prepared by: Divya Pandey
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