M. PALANISAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) These Writ Petitions have been filed for a Writ of Certiorarified Mandamus to call for the records pertaining to G.O.Ms. No. 32, Industries (MMC2) Department, dated 11.02.2011, quash the same and direct the Respondents not to interfere with the Petitioners' right to carry on their business from the Petitioners' stockyard situated through out the State of Tamil Nadu. Since all these Writ Petitions raise the common question of law viz., quashing of G.O.Ms. No. 32 dated 11.02.2011 issued by the Respondent-State Government, they have been heard together and are being disposed of by this common judgment.

(2.) A summarization of the relevant facts, which are necessary and germane for the disposal of this batch of Writ Petitions, would run thus (for the sake of convenience, the facts in W.P. No. 14180 of 2011 are taken up for discussion):

(3.) According to the Petitioners, Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (for short 'the Act') deals only with the granting of leases and purposes connected therewith and it does not deal with the trade in minerals or the movement of minerals from the stockyard or from the processing units. As per Section 15(3) of the Act, the holder of the mining lease or any other mineral concession granted under any Rule made under sub-section (1) shall pay royalty or dead rent, whichever is more, for the minerals quarried and consumed as per the rates fixed by the State Government. In the case of minor minerals, the royalty is called seigniorage. It is stated that from 01.10.2003 onwards, quarrying of sand by private persons has been banned in the State of Tamil Nadu by introducing Rule 38-A to the Tamil Nadu Minor Mineral Concession Rules, 1959 (for short 'the Rules') and the same was taken over by the Public Works Department. Ever since, the PWD is quarrying and selling sand at the quarry site by collecting the sale amount for each two units of sand. The sale price includes the value of the sand, quarrying cost, loading charges and seigniorage. Till 25.08.2008, the sand so purchased was permitted to be transported either within the State or outside the State without any restrictions. However, the Government of Tamil Nadu banned such transport outside the state by introducing Rule 38-B to the said Rules. When challenged, Rule 38-B was held to be valid by a Division Bench of this Court, since the quarrying is done by the PWD and the sale is made on condition that the sold sand should not be taken outside the State and also in view of Section 23-C of the Act dealing with illegal mining. The said Section enables the State Government to establish check posts, weigh bridges, regulation of mineral transport from the leased area, inspection at the place of excavation or storage or during transit, etc. According to the Petitioners, neither Section 15 nor Section 23-C of the Act deal with the control of transportation of the processed minerals from the stockyard or from the processing unit to the destination of the intending purchasers. Neither the Act nor the Rules deal with the trading of minerals. It is stated that the authorities have got the right and jurisdiction to check the vehicles transporting the minerals from the stockyard/processing unit to the place of purchaser's destination to see whether the same is transported under valid bills or not, and they have got every right to check the quantity of the minerals and the records of the stockist at the stockyard, but that does not authorize the authorities to control either the sale from the stockyard/processing unit or control of the mineral trade. It is stated that once the mineral is transported from quarry site by paying necessary seigniorage with valid transport permits or with valid PWD Bills, the control and the ownership over the said mineral vests with the stockist/purchaser, and the authorities cannot interfere with its trading and transportation from the stockyard to the place of the intended purchaser except to check the vehicles to see whether the records are clear and the quantity of the mineral coincides with the bills. It is alleged that the authorities can have checkposts, weighing bridges, and even surprise checking squad to curtail illicit transport, but it cannot by any stretch of imagination be extended to either controlling or restricting lawful trade from the stockyard. Trading of minerals is outside the purview of the Act and the Rules. While being so, the Respondent-State Government by G.O.Ms. No. 32, Industries (MMC2) Department dated 11.02.2011, has introduced Rule 38-C, by which it has been made mandatory to obtain a licence for setting up of a stockyard and it also mandates that the sale slip shall be obtained by the stockist from the local Deputy Tahsildar. For the said purpose, the stockist or the licensee shall send the original transport permits issued by the authorities while transporting the mineral from the quarry and also the sale slip for countersigning by the Deputy Tahsildar. It is stated that the transport permit or the sale bill issued by the PWD is pertaining to sale and transport of particular quantity of mineral and the said mineral after being transported to the stockyard will get merged with the stock already existing in the stockyard or with the sand subsequently purchased by the stockist from the PWD. Therefore, it is practically impossible to identify the quantity of the sand which relates to a particular transport permit from the huge stock lying at the stockyard, that too after processing the same. Since, the processing procedure eliminates 25% of the purchased sand, the actual quantity available in the stockyard cannot tally with the sale bills issued by the PWD. It is stated that the conditions imposed by way of impugned Government Order are totally without jurisdiction, per se illegal and without authority. The conditions imposed violate the provisions contained under Article 14 & 19(1)(g) of the Constitution, and they are against the law laid down by the Supreme Court and the High Court.