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TMI Blog2009 (4) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... 301 to 304 of the Constitution of India. 3. Rule 38(B) of the Tamil Nadu Minor Minerals Concession Rules, 1959 is as follows: 38-B Transport of Sand outside the State not to be made:- No transport of sand covered under Rule 38-A of these rules shall be made across the border of other States. 4.The brief facts of the case are as follows: An order was passed by a Division Bench of the Hon'ble High Court dated 26.07.2002 directing the State Government to constitute a Committee of experts consisting of Geologists, Environmentalists and Scientists to study the river and riverbeds in the State with reference to the impact of the sand quarrying. The Hon'ble High Court directed the said Committee to submit a report and further directed the Government to take necessary steps to arrest the exploitation and improve the situation. While passing the order this Court has observed as follows: rivers are being plundered by a powerful mafia controlling the sand mining business. The illegal trade is driven by the unholy nexus between contractors, politicians, trade union leaders, panchayat and revenue officials and corrupt policemen, making a mock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions on behalf of the petitioners: Shri V.T. Gopalan, learned senior counsel appearing on behalf of the petitioners raised several contentions in support of the prayer to declare Rule 38-B as unconstitutional and ultra vires the Parent Act. They are as follows: (i) The impugned Rule 38-B is unconstitutional, since the same is in contravention of Article 301 and 304 of the Constitution of India. In other words Rule 38-B does not have the legislative competence and sanction of the Constitution. (ii) Rule 38 is liable to be declared as ultra vires the Parent Act namely, the Mines and Minerals (Development and Regulation) Act, 1957. Section 15 of the said Act does not empower or authorise the State Government to pass such a rule thereby prohibiting the transport of sand outside the State of Tamil Nadu. (iii) Rule 38-B is liable to be set aside since even Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957, does not authorise such a rule making power resulting in the prevention and prohibition of transport of sand outside the State. (iv) As per the principle of ejusdem generis, the prior word illegal mining sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Advocate General appearing on behalf of the respondents. 10. Whether Rule 38(B) is Violative of Article 301 and 304 of the Constitution: Article 301 and 304 of the Constitution of India are extracted hereunder: 301.Freedom of trade, commerce and intercourse - Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free. 304.Restrictions on trade, commerce and intercourse among States - Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law - (a) impose on goods imported from other States (or the Union territories) any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purpose of Clause (b) shall be introduced or moved in the Legislature of a State without the previous san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less Ltd. v. State of Haryana) does not have any application to the present case since the issue involved therein was as to whether the Compensatory Tax imposed by the State is valid or not. Hence we hold that the impugned Rule 38 is not unconstitutional being violative of Article 301 and 304 of the Constitution of India. 11. Whether Rule 38(B) is in Violation of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957: The learned senior counsel has contended that inasmuch as in the absence of any power under the Parent Act, the impugned rule is not good in law. In support of his contention, the learned senior counsel has relied upon AIR 2004 Mad 151 (K.P. Enterprises v. District Collector Salem); AIR 1995 SCC 858 (State of Tamil Nadu v. M.P.P. Kavery Chetty); (2008) 3 SCC 735 (K.T. Varghese v. State of Kerala), to contend that under Section 15(1) of the MMDR Act, 1957, there is no power to control the movement of any minerals after the sale. In the judgment reported in AIR 2004 Mad 151 (K.P. Enterprises v. District Collector, Salem), unfortunately Section 23-C has not been brought to the notice of this Court. It is well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh High Court. In the said case Rule 9-W of Andhra Pradesh Mineral Concessions Rules which prohibits movement of sand across the border to the neighbouring State was challenged. The Division Bench of the Andhra Pradesh High Court has upheld the rule by tracing the power under Section 23-C interpreting the words illicit mining, transportation and storage as distinct and different. We are in complete agreement with the said judgment. Further Section 4(1)(A) of MMDR Act, 1957 says as follows: No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. Section 4 of the said Act provides for prospecting or mining operation to be licensed or lease. Therefore, it is very clear that power has been conferred on the authorisers to regulate the transport and storage of minerals. We are of the opinion that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word regulation has no fixed connotation. The said word will have to be given wider meaning when the public interest is involved. In the judgment reported in (1981) 2 SCC 205 (State of Tamil Nadu v. Hind Stone), the Hon'ble Supreme Court has held as follows: 10.One of the arguments pressed before us was that Section 15 of the Mines and Minerals (Regulation and Development) Act authorised the making of rules for regulating the grant of mining leases and not for prohibiting them as Rule 8-C sought to do, and, therefore, Rule 8-C was ultra vires Section 15. Well known cases on the subject right from Municipal Corporation of the City of Toronto v. Virgo and Attorney-General; for Ontario v. Attorney-General; for the Dominions up to State of U.P. v. Hindustan Aluminium Corporation Ltd., were brought to our attention. We do not think that 'regulation' has that rigidity of meaning as never to take in 'prohibition'. Much depends on the context in which the expression is used in the statute and the object sought to be achieved by the contemplated regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of Tamil Nadu: The word 'regulation' ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India), the Hon'ble Supreme Court has held that prohibition of trade and ivory does not offend Article 19(1)(g) and the same is a reasonable restriction under Article 19(6) of the Constitution. It is also to be noted only sand is prohibited from taking outside the State in view of the overwhelming public interest. Therefore, we are of the opinion that the definition of the word regulation is wide enough to cover the prohibition and movement of minerals outside the State. 14.Statement and Reasoning of Section 23-C The learned senior counsel for the petitioners has further contended that in view of the statement and reasoning for Section 23-C of the Act, it cannot be construed that the word transport and storage are independent words and therefore, they should be read as illicit transport and illicit storage. On a plain reading of Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957, there is nothing to indicate that the words transport or storage would only mean illicit transport and illicit storage. In this connection, it is useful to refer 2003 (1) SCC 692 (Bhaiji v. Sub Divisional Officer, Thandla) wherein the Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Dharmendra Textiles Processors), the Hon'ble Supreme Court in paragraph 52 has stated as follows: 52...It is a well-settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse (1997) 6 SCC 312). The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846) 6 Moo PC 1, the courts cannot aid the Legislature' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 of the said judgment the Hon'ble Bench has stated as follows: 5.We are not able to concur with the reasoning given by the Writ Court for setting aside the notification. The principle of interpretation of the statute or a provision of a statute has been the subject matter for decision before the Apex Court in a plethora of cases. In all those cases, the Apex Court ruled that the elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. In case of an ordinary word there should be no attempt to substitute or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a learned author puts it: ...if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would make the specific words unnecessary. (See Construction of Statutes by E.A. Driedger p.95 quoted by Francis Bennion in his Statutory Construction page 829 and 830). 15.Francis Bennion in his Statutory Construction (pp.830-31) observed: For the ejusdem generis principle to apply there must be a sufficient indication of a category that can properly be described as a class or genus, even though not specified as such in the enactment. Furthermore the genus must be narrower than the words it is said to regulate. The nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government, the said rule has been made in public interest and also taking into consideration of the hardship that caused to the consumers in the State of Tamil Nadu as well as the high rate of urbanisation in the State. In the counter affidavit, it is also stated by the Government that illegal, unaccounted sand is also transported outside the State. It is well known that sand in the present form has already undergone various changes over thousands of years. As found by the Expert Committee, due to over exploitation and indiscriminate mining of river sand, the environment and the ecosystem got very much affected. The Expert Committee has also found out that the indiscriminate mining has resulted in deepening of the river beds, widening of the rivers, damage of civil structures, depletion of ground water table, degradation of ground quality, damage to the rivers system and reduction of bio diversity. Therefore, what is important is to use the barest minimum of sand for developmental activities. If the sand is allowed to be transported due to the demands in various places outside the State it would only increase the demand for more sand. This in turn would affect the envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Hon'ble High Court. The said rule has been introduced with a view to regulate and control indiscriminate, over exploitation and illicit sand mining. As stated earlier both the Division Bench of the Hon'ble High Court as well as the Hon'ble Supreme Court have upheld the validity of the Rule 38-A. We are of the opinion that Rule 38-B is nothing but a natural sequence to Rule 38-A. The object and purpose of Rule 38-B is similar to that of Rule 38-A. Therefore, Rule 38-B will have to be read in the context of Rule 38-A which is upheld by the Hon'ble Supreme Court of India. 19. It is a matter of fact that there is a huge demand for sand due to the spurt in developmental activities. It is also a matter of fact that in some of the neighbouring States, there is a total ban of sand quarrying in the rivers. As held already the rivers are natural resources of the nation as well as the entire world and they cannot be allowed to be damaged in a particular State as against the other States. Rivers and other water resources are dwindling coupled with the increase in demand for water due to ever growing population. It is to be noted that even in the counter affi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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