2018 (4) TMI 423 - HC - Indian Laws

Import of sand/river sand - licence, permit, transport slip, etc., under the Tamil Nadu Minor Mineral Concession Rules, 1959 - N/N. 97 (RE-2013)/2009-2014 - the petitioner failed to prove that the river sand imported by the petitioner does not contain any metal as prescribed under Chapter 26 and hence, the same has to be chemically analysed to ensure that it does not contain any hazards or heavy metals, etc., in public interest. Held that - the scope of Rules 38-A, 38-B and 38-C was to regulate the quarrying of minor minerals, including sand and regulate the stocking, transportation and sale of such quarried minor minerals, within the State of Tamil Nadu. After introduction of Rule 38-A, the mining activity is to be done only by the Public Works Department and when a person purchases sand from the Department, he has to obtain a licence for storage and transportion. The Rules does deal with the imported sand, be it ordinary sand or silica sand or any other form or for the matter of fact, it cannot deal as because in the first place, the Rules did not deal with the import, the Rules were framed in 1959 and the permission to import with a Plant Quarantine Certificate has been accorded in 2014. Also, The introduction of Rules 38-A, 38-B and 38-C did not alter the original position. The conditions prescribed in the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011 cannot be imposed on the importers. The word import used in Rule 7 is applicable in cases of minerals imported from other States as there is only a ban in movement of sand from one State to another. Similarly, the Rules came into force in 2011 and therefore, it cannot be extended to an import permitted by the import policy of the year 2012 and revised by the notification dated 07.11.2014 issued by the Department of Director General of Trade and Finance to obtain a Plant Quarantine Certificate, under the Regulations which though was in vogue in 2003 itself. When in a case of a prospecting or mining operation given under a license or lease such a restriction could be made, Section 23-C should necessarily be construed giving power to the State Government to control and regulate the movement of the minerals , rejected the contention of the appellant. The restriction contemplated under Section 38-B would apply when either the licencee moves the goods without the Form or is in possession of excess quantity of mineral, mined or purchased and in case of movement with the Form, moves the goods elsewhere or stocks it at a place other than the authorised stock yard. This Court feels, that the State will keep the public interest as paramount rather than any other interest and raise to the emergent occasion to protect and preserve the natural resources and environment of the State, which in turn, would pave way for a better life to our future generations. Petition allowed.

Summary

Issues Involved:
1. Jurisdiction of the State Government to regulate the transportation and storage of imported river sand.
2. Applicability of the Mines and Minerals (Development and Regulation) Act, 1957, and the Tamil Nadu Minor Mineral Concession Rules, 1959, to imported sand.
3. Environmental concerns and the need to curb illegal sand mining.
4. Legal provisions and their interpretation regarding the import, transportation, and sale of minerals.

Detailed Analysis:

1. Jurisdiction of the State Government to Regulate the Transportation and Storage of Imported River Sand:

The petitioner, a Private Limited Company, imported river sand from Malaysia and sought a writ of Mandamus to prevent the respondents from insisting on permits under the Tamil Nadu Minor Mineral Concession Rules, 1959, for transporting the imported sand. The petitioner argued that the said Rules do not apply to imported sand, as they are meant for regulating minerals quarried within India.

The State Government contended that it has the right to insist on licenses for transportation and storage of the imported sand. They argued that the imported sand falls under the category of "Silica sand" as per the notification and must be subjected to chemical analysis to ensure it does not contain hazardous materials.

The court concluded that the State Government does not have jurisdiction to impose restrictions on the transportation and storage of imported sand under the existing Tamil Nadu Minor Mineral Concession Rules, 1959, and the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011. These rules were framed to regulate the quarrying and transportation of minerals mined within the state, not imported sand. The court emphasized that the rules must be read harmoniously with the parent act, which does not deal with imports.

2. Applicability of the Mines and Minerals (Development and Regulation) Act, 1957, and the Tamil Nadu Minor Mineral Concession Rules, 1959, to Imported Sand:

The petitioner argued that neither the Mines and Minerals (Development and Regulation) Act, 1957, nor the Tamil Nadu Minor Mineral Concession Rules, 1959, apply to imported sand. The petitioner presented all necessary documents, including the Plant Quarantine Certificate, to prove the legality of the import.

The State Government argued that the petitioner must register as a mineral dealer under the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, and comply with the rules for transportation and storage.

The court held that the Mines and Minerals (Development and Regulation) Act, 1957, and the Tamil Nadu Minor Mineral Concession Rules, 1959, do not apply to imported sand. The court noted that the rules were framed to regulate the quarrying of minor minerals within the state and do not contemplate the import of sand. The court emphasized that the appropriate documents for imported sand are those prescribed under the Customs Act, and the state cannot prevent the transportation of imported sand if these documents are available.

3. Environmental Concerns and the Need to Curb Illegal Sand Mining:

The court highlighted the importance of preserving the environment and curbing illegal sand mining. It referred to several judgments emphasizing the need to protect natural resources and maintain ecological balance.

The court directed the State to stop all sand mining/quarrying activities within six months and not to open any new sand quarries in the future. It also directed the State to take steps to import sand to meet the demand and prevent illegal mining.

4. Legal Provisions and Their Interpretation Regarding the Import, Transportation, and Sale of Minerals:

The court analyzed the relevant provisions of the Mines and Minerals (Development and Regulation) Act, 1957, and the Tamil Nadu Minor Mineral Concession Rules, 1959. It concluded that the rules do not apply to imported sand and that the State Government does not have the power to impose restrictions on imported sand under these rules.

The court also directed the State to bring in appropriate legislation to regulate the movement, stocking, and sale of imported sand, if necessary, under Article 304 of the Constitution of India.

Conclusion:

The court allowed the writ petition, holding that the State Government does not have the jurisdiction to regulate the transportation and storage of imported sand under the existing rules. It issued several directions to the State to curb illegal mining and take steps to import sand to meet the demand while protecting the environment.