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K.P.ENTERPRISES REP. BY versus THE DISTRICT COLLECTOR

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K.P.Enterprises rep. by v. The District Collector - Writ Petition No. 562 of 2000 [2003] RD-TN 70 (31 January 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 31/01/2003

CORAM

THE HON'BLE MR.JUSTICE E.PADMANABHAN

Writ Petition No. 562 of 2000

and

WPMP.No.800 of 2000

K.P.Enterprises rep. by

its Proprietrix

Mrs.K.Vasumathi

TC 36/1274, Sabari Buildings

Perunthanni

Trivandrum-8 ..Petitioner -Vs-

The District Collector

Salem. ..Respondent Writ Petitions are preferred under Art.226 of The Constitution of India seeking for a writ of certiorari, as stated therein. For petitioners :: Mr.V.Sanjeevi

For respondents:: Mr.P.Gunaraj, Spl.Govt.Pleader :O R D E R



The writ petitioner has prayed for the issue of a writ of certiorari calling for the records of the respondent in his proceedings Roc.NO.2366/99/Mines-C dated 10.1.2000 and quash the same.

2. This court issued rule nisi on 23.4.2002.The respondent has been served and entered appearance through the Special Government Pleader. The respondents ;have also filed a counter.

3. Heard Mr.V.Sanjeevi, learned counsel appearing for the writ petitioner and Mr.P.Gunaraj, learned Special Government Pleader appearing for the respondents. The writ petition was taken up for hearing on several days and detailed arguments were ad ed by Mr.Gunaraj who sought to sustain the impugned order, while Mr.Sanjeevi, learned counsel for the petitioner advanced detailed contentions challenging the proceedings of the respondent dated 10.1.2000.

4. Certain undisputed facts have to be set out. The writ petitioner was granted mining lease to quarry black dimensional granite Stone owned by the State of Kerala in the lands comprised in 17/5-1, 17/7, 17/8, 17/16, Block No.37 in Nagaroor Vill Chirayin Keezhu Taluk, Trivandrum District for a period of Twenty years. The lease deed was executed on 24.11.1997 in the form prescribed under the Kerala Minor Mineral Concession Rules 1967. The petitioner secured a valid license in quarrying granit e. The petitioner is transporting coloured dimensional black granite to different places in the state of Tamil Nadu, Andhra Pradesh etc., after paying necessary seinerage fee to the State of Kerala with permits issued by the Department of Mining and Ge ology, Trivandrum District such as bulk permit and cash memorandum in form P issued under Rule 48K of the Kerala Minor Mineral Concession Rules. M/s.Evershine Granites, Kuppam, Andhra Pradesh placed orders for supply of granite block of 10.478 CBM, whi le two others namely M/s.Crystal Granites, Maharashtra and PSTS Co., Tuticorin placed orders for supply of granite blocks measuring 4.435 CBM and 5.662 CBM and 4.498 CBM respectively. The petitioner secured bulk permit from the Department of Mining and Geology, Kerala on 18.11.1999 to remove granite dimensional blocks measuring 24.4.73 CBM. After paying the seigniorage fee of Rs.97,892/= the permit was issued valid between 18.12.199 to 26.12.1999. The petitioner despatched granite dimensional block measuring 10.478 CBM to M/s.Evreshine Granites, Kuppam, Andhra Pradesh on 20.12.1999 by lorry bearing Registration No.K.A-01-8548. The petitioner handed over all the documents prescribed, namely, Bulk Permit, cash memorandum (Form P) as well as s ales tax delivery note, sales tax declaration form etc., which normally accompany such transport.

5. The Tahsildar, Sankari intercepted the lorry on 22.12.1999 at 7.00 a.m., near Sankari R.S. Despite the lorry driver producing the documents the Tahsildar seized the vehicle with the granite block. On behalf of the petitioner a written represent n was made on 27.12.1999 to the respondent for release of the granite block and the lorry, while producing Cash memorandum issued in Form-P which was displaced in lorry cabin. The respondent herein by proceedings dated 10.1.2000 imposed penalty of Rs. 1,78,662/= being the cost of minerals and five times seigniorage fee on the premise that the granite has been illicitly quarried and liable to pay segniorage fee to this State under Tamil Nadu Rules.

6. It is the case of the petitioner that the Tamil Nadu Minor Mineral Concession Rules 1959 has no application. The respondent took the stand that the lorry and the granite block will be released only on the petitioner remitting the said sum of R 78,662/=. It is contended that the Tamil Nadu Minor Mineral Concession Rules has no application to the case on hand. Even after producing all the material documents and even after referring the matter to the Kerala Authorities, the respondent has passed the impugned order ignoring the fact that it lacks total jurisdiction to impose the penalty and to detain the granite block.

7. The learned counsel for the petitioner raised number of contentions contending that the respondent has no jurisdiction. The provisions of Tamil Nadu Minor Mineral Concession Rules has no application, that the petitioner is in valid possession o e granite blocks by virtue of the lease granted in his favour under the Kerala Minor Mineral Concession Rules, 1967, the imposition of penalty in respect of the granite block transported in the course of inter state movement is illegal and without jurisd iction. Having verified with the Kerala authorities the respondent should have released the granite block and lorry without delay.

8. The respondent filed a counter setting out the details of transportation of coloured granite block by the petitioner. The Tahsildar, Sankari reported that a case has been lodged against the transportation and treated as illicit transportatio the petitioner. The petitioner's Manager prayed for the release of the vehicle without imposing any fine after perusing the genuineness of the documents and after getting a report from the Department of Mining and Geology, Trivandrum. Thereafter a pe nalty was levied with five times seigniorage fee for alleged illicit transportation of granite by the respondent.

9. It is admitted that the granite block is covered by a valid transport permit which is valid from 18.12.1999 to 26.12.1999. The petitioner has also furnished all the documents to the driver of the lorry covering the consignment. It is stated t the petitioner did not produce the despatch slip as required in Tamil Nadu Rules at the time of inspection by the Tahsildar. So, it was assumed that the transportation is illegal and illicit one. Under Rule 8(5)(b) of the Tamil Nadu Minor Mineral Concess ion Rules, 1959 all the Vehicles used for transportation of Minor Mineral from any area shall be in possession of the individual despatch slip for the quantity of mineral available in the vehicle at all times of transportation of the mineral by the veh icles. It is stated that despatch slips are issued for transportation of the mineral under the Tamil Nadu Minor Mineral Concession Rules which the Driver has failed to produce.

10. It is contended that the petitioner has transported the black granite without valid despatch slip and it is in contravention of Rule 36(5)(b) of the Tamil Nadu Minor Mineral Concession Rules, 1959. Hence the respondent has levied penalty for icit transport of black granite.

11. Mr.V.Sanjeevi, learned counsel appearing for the writ petitioner referred to the Tamil Nadu Minor Mineral Concession Rules and contended that the said rule has no application, when admittedly the granite block is of Kerala origin and there is dispute in this respect. It is also contended that the respondent has neither jurisdiction or authority to impose any penalty or collect seigniorage fee in respect of the granite block which is of Kerala origin and it is not as if the granite block is quarried within the State of Tamil Nadu much less illicitly. It is fairly stated by the counsel for the petitioner as well as respondent that the granite block in question is of Kerala origin and the respondent also admits the same. It is also admitte d that this particular variety of black granite which is commonly known as Kerala granite is not available in the State of Tamil Nadu. Though Mr.Gunaraj, learned Special Government Pleader initially contended that in the absence of despatch slip the re spondent has the authority to detain and pass the impugned order, ultimately he has to concede that the respondent has no jurisdiction and Section 21(4) of the Mines and Mineral (Development and Regulation) Act, 1957 also will not cover the present co nsignment of Kerala granite.

12. The only question that arise for consideration is:- Whether the impugned proceedings of the respondent is illegal, without jurisdiction and liable to be quashed?

13. The petitioner furnished a copy of the proceedings of license issued by the Mining and Geology, Government of Kerala granting the quarrying lease for quarrying dimensional stone. It is true that the petitioner has got a valid quarrying lic . The petitioner has also produced copy of the agreement executed between the petitioner and the Governor of Kerala on 24th November, 1997 which enables the petitioner to quarry black granite dimensional stones in the particular survey numbers detai led in the agreement and there is no quarrel.

14. By a bulk permit dated 18.12.1999 the Department of Mining and Geology, State of Kerala issued permit for transporting dimensional granite stone to (i) M/s.Evershine Granites, Kuppam, Andhra Pradesh, (ii)M/s.Crystal Granites, Maharashtra and M/s S Company, Tuticorin for a total quantity of 24.473 CBM. The consignment is covered by valid permit. The lorry number is also set out in the bulk permit which is despatched from the quarry to Kuppam in Andhra Pradesh. By four lorries totally 24,473 CB M of black dimensional granite stones were despatched on 20th or 26 of December 1999 as detailed in the bulk permit issued by the Department of Mining and Geology, State of Kerala.

15. The respondent has verified the issue of bulk permit with the Kerala State Authorities and the said authorities have also confirmed about the lease of quarry and issue of permit as well as quantity by the particular lorry which is consigned t ppam in Andhra Pradesh.

16. The petitioner has also issued the invoice for the sale of the granite blocks. Cash memorandum dated 26.12.1999 issued by the Department of Mining and Geology, State of Kerala was also produced before the respondent bearing No.279 valid up 6.12.1999 in respect of the granite block whose price has been indicated as 84,360 and its purchaser being M/s.Evershine Granites, Kuppam, Andhra Pradesh and it is being transported by Lorry baring Registration No.K.A.01-8548 from Trivandrum District and it is transported between 20th December 1999 to 24th December 1999. The petitioner has also issued the delivery note as prescribed under Kerala General Sales Tax Rules prepared in favour of the purchaser at Kuppam. The petitioner has also produ ced the Form 27B Declaration issued under the Kerala General Sales Tax 1963.

17. Despite the said production of these material documents, the granite blocks with the lorry has been seized and detained for no valid reason Even in the impugned order passed by the respondent it is stated that on a reference, the Mining and Ge y Department, Trivandrum confirmed the movement 24,773 CBM of Black Dimensional Granite blocks by the petitioner vide movement permit dated 18.12.1999 and the royalty per cubic meter at Rs.4000/= has been paid to Kerala State. Cash Memorandum in Form P also has been produced by the petitioner. Even after referring to that the respondent has proceeded as if the granite block is of Tamil Nadu Origin when admittedly in the entire State of Tamil Nadu even as admitted by the counsel or respondent such a kind or variety of granite is not available. It is admitted that it is a Kerala State origin. Even assuming for the purpose of argument that the Driver has not produced Form P issued by the Kerala Authorities, there are other documents to show that i t is transported from Kerala State to Kupam, in Andhra Pradesh to the particular consignee and material documents have been placed before the respondent as well. Even From P also was produced immediately. Despite that, the respondent assumed that th e transportation is illegal or that it requires a despatch slip issued under the Tamil Nadu Minor Mineral Concession Rules, which is a misconception. The documents produced by the petitioner would show that the petitioner is a grantee of lease by t he State of Kerala who was permitted to quarry, given permit for the movement of the granite blocks and other documents with respect to the sale by the petitioner to the consignee in Andhra Pradesh. Despite the same, the respondent has proceeded as if that there has been violation of Rule 36-A(3), 36-A(5) and 36(5)(b) of the Tamil Nadu Minor Mineral Concession Rules, 1959.

18. Rule 1 (2), particularly "preliminary" makes it clear that Tamil Nadu Minor Mineral Concession Rules have no application to the consignment of Kerala granite being transported from Trivandum to Kuppam an inter-state movement.

19. The preliminary Rule reads thus:-

1. PRELIMINARY:- (1) These rules may be called lthe Tamil Nadu Minor Mineral Concession Rules, 1959.

(2) They extend to the whole of the State of Tamil Nadu. (3) They shall apply to all the lands in the State of Tamil Nadu including the lands in the estates taken by the State Government under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Tamil Nadu Act XXVI of 1948).

20. The respondent has acted without authority is seizing the granite and thereafter directing the petitioner to pay a seigniorage fee and penalty at five times the normal seigniorage fee. Under the Rules, unless the granite is of Tamil Nadu origi he respondent has no authority to levy the seigniorage fee penalty as has been imposed on the facts of the case. The entire action is without authority and jurisdiction.

21. Concedingly, it is an Inter-State movement and it carried valid documents. The consignment of granite from Trivandrum to Kuppam in Andhra Pradesh was accompanied by all the requisite permits as prescribed by the Kerala authorities. The respon has also no doubt in its mind that block is of Kerala origin. Yet, the respondent has ordered payment of seigniorage fee and a penallty of 5 times as if there is a violation of Tamil Nadu Minor Mineral Concession Rules in particular Rule 36-A(3), 36-A( 5) and 36-5(b). It is a misconception of the provisions of the Tamil Nadu Minor Mineral Concession Rules. Though it is admitted that the granite block is of Kerala origin and it is consigned to a consignee in Andhra Pradesh, it is being transported t hrough Tamil Nadu to a dealer in Andhra Pradesh, being an Inter-State movement, it is too extraordinary for the respondent to assume that the Tamil Nadu Minor Mineral Concession Rules applies and enforce seigniorage fee and penalty as well.

22. The respondent has also corresponded with the Keral authorities who also confirmed the factual position. The provisions of the Tamil Nadu Minor Mineral Concession Rules has no application at all. The respondent has acted without jurisdiction. t apart, it is an Inter-State movement.

23. Section 21(4) of the Mines and Mineral (Development and Regulation) Act, 1957 also will not apply nor it confers power on the respondent and therefore the action is without jurisdiction. Under section 15 of the Mines and Mineral (Regulation Development) Act, 1957 the State has been conferred with a power to make Rules in respect of Minor Minerals for regulating the grant of quarry lease, mining lease and other mineral concessions in respect of mining minerals and for purposes connected th erewith in the state Section 15(1)(a) also enables the State to provide for all or any of the matters enumerated in the said Sub section. The various sub clauses namely Section 15(1)(a) to (o) will not enable the State Government to frame Rules in res pect of minerals whose origin is admittedly from the other State and what is contemplated under the Rules is in respect of the quarries or minerals or granites quarried within the State there could be a regulation. The Tamil Nadu Rules has no applicat ion and Tamil Nadu State has no authority or right to impose or collect royalty in respect of black granite which is admittedly of Kerala origin. Nor, penalty could be levied. Under Section 13, the Central government has the authority to frame rules regulating grant of prospecting license and mining leases.

24. In State of Tamil Nadu Vs. Kaveri Chetty, reported in (1995) 2 SCC 402, while examining the scope of Section 15 of the Mining and Mineral (Regulation and Development) Act, 1957, the Apex Court held thus:- "21. The said Act is enacted to provide for the regulation of mines and the development of minerals under the control of the Union. Section 2 of the said Act declares that it is expedient in the public interest that the Union should take under its contro l the regulation of mines and the development of minerals to the extent provided in the said Act. Section 13 empowers the Central Government to make rules for regulating the grant of prospecting licences and mineral leases in respect of minerals and for purposes connected therewith. Sub-section (1) of Section 15 empowers the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and for purposes connected therewi th. Sub-section (1-A) of Section 15 states that such rules may provide for the matters set out therein, namely, the person by whom and the manner in which an application for a quarry lease, mining lease and the like may be made; the fees to be paid there for; the time and the form in which the application is to be made; the matters which are to be considered where applications in respect of the same land are received on the same day; the terms and conditions on which leases may be granted or regulated; t he procedure in this behalf; the facilities to be afforded to lease-holders; the fixation and collection of rent and other charges and the time within which they are payable; the protection of the rights of third parties; the protection of flora; the man ner in which leases may be transferred; the construction, maintenance and use of roads, power transmission lines, etc. on the land; the form of registers to be maintained; reports and statements to be submitted and to whom; and the revision of any order passed by any authority under the said Rules. Clause (o) of sub-section (1-A) reads "any other matter which is to be or may be prescribed". Section 18 of the said Act states that it shall be the duty of the Central Government to take all such steps as ma y be necessary for the conservation and systematic development of the environment by preventing or controlling any pollution which may be caused by prospecting or mining operations.

23. It is difficult to see how granite resources can be protected by controlling the sale of granite after its excavation and fixing the minimum price thereof.

24. There is no power conferred upon the State Government under the said Act to exercise control over minor minerals after they have been excavated. The power of the State Government, as the subordinate rule-making authority, is restricted in the manner set out in Section 15. The power to control the sale and the sale price of a minor mineral is not covered by the terms of clause (o) of sub-section (1-A) of Section 15. This clause can relate only to the regulation of the grant of quarry and mining lease s and other mineral concessions and it does not confer the power to regulate the sale of already mined minerals."

25. Section 21(4) relied upon by the respondent has no application at all, nor it could be relied upon to the facts of the present case. In the circumstances, the order impugned deserves to be quashed and accordingly it is quashed.

26. The writ petition is allowed and there will be a direction to release the bank guarantee furnished for release of the vehicle and granite block. The respondent shall release the bank guarantee within four weeks from the date of communication of s order. Consequently, connected WMP is closed. No costs.

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gkv

To

The District Collector

Salem.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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