Poonamallee Circle vs R-1 The Secretary To Government on 19 September, 2013

[Cites 17, Cited by 0]

Madras High Court

Poonamallee Circle vs R-1 The Secretary To Government on 19 September, 2013

Bench: S.Manikumar

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19/09/2013

CORAM

THE HON'BLE MR.JUSTICE S.MANIKUMAR

MP.1 of 2013
in
WP.12454 of 2013

POONAMALLEE CIRCLE, RIVER &  LORRY OWNERS ASSN 
TIRUVALLUR CENTRAL DISTRICT REG. NO.609/1997 
BANGALORE HIGH ROAD, 
NASARATH PETTAI, 
CHENNAI-123, 
REP. BY ITS PRESIDENT						.. PETITIONER

VS

R-1 THE SECRETARY TO GOVERNMENT,  
INDUSTRIES DEPARTMENT, 
STATE OF TAMIL NADU, 
CHENNAI-9.

R-2 THE SECRETARY TO GOVERNMENT,  
PUBLIC WORKS DEPARTMENT, 
FORT ST. GEORGE, 
CHENNAI-9.

R-3 THE DISTRICT COLLECTOR  
KANCHEEPURAM DISTRICT, 
KANCHEEPURAM.

R-4 THE DISTRICT COLLECTOR  
TIRUVALLUR DISTRICT, 
TIRUVALLUR.

R-5 M.PALANISAMY,  
107-A, SENGUPTHA STREET, 
RAM NAGAR, 
COIMBATORE-9.
								... RESPONDENTS


			FOR PETITIONER : MUTHAPPAN


ORDER :

Poonamallee Circle River Sand Lorry Owner's Association, Tiruvallur Central District, represented by its President, has filed this writ petition for a Mandamus, directing the respondents 1 to 4 to take appropriate action against 5th respondent, Mr.M.Palanisamy and his men from selling river sand by setting up stockyard, without obtaining a dealer licence from the competent authority, as required by Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959 (hereinafter referred to "the Rules") and also prayed for a direction to the respondents 1 to 4, to enable the members of the Association to purchase river sand, directly from PWD, at quarry pits mouth.

2. The President of the petitioner's Association, on behalf of others, has contended that members of the Association are operating lorries, exclusively for transporting construction materials, like sand, savudu and jelly and supplying the same, to the building contractors and individual public, depending upon their requirements. As far as sand is concerned, since 01.10.2003, quarrying operation is done by Public Works Department, since 01.10.2003, onwards, pursuant to the introduction of Section 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959. As per the statutory provisions, Public Works Department is quarrying and selling sand, at the pits mouth, by collecting the sale amount and each lorry is permitted to take two units load of sand. According to the petitioner, the sale price includes, value of sand, quarrying cost, loading charges and seiniorage fee.

3. It is the case of the petitioner that the 5th respondent, along with many others, claiming themselves to be the dealers of the sand, set up stockyards, by purchasing the river sand from Public Works Department and selling the same, at a higher rate to lorry owners, like the members of the Association. According to the petitioner's association, at private stockyards, one unit load of sand is being sold at Rs.2,500/- and when it reaches the consumer, it is costly.

4. The petitioner's Association has further submitted that in order to regulate sand trade, State Government have introduced Rule 38-C in G.O.Ms.No.32, Industries (MMC02) Department, dated 10.02.2011, which mandates that the dealers should obtain a licence from the competent authority, for setting up stockyards. When the same was challenged by several dealers in W.P.Nos.14180 of 2011, etc., batch, the Hon'ble Division Bench, by order, dated 19.06.2012, has upheld the validity of the said Rule. However, during the pendency of the writ petitions, the dealers have set up stockyards and were selling sand, on the strength of interim orders. Though some of the dealers have approached the Apex Court, there is no interim stay.

5. The petitioner's Association has further contended that the main object of bringing about an amendment is to avoid illicit quarrying, transportation of sand, and also to avoid sale of sand, at escalated rates. According to the petitioner, they could not purchase sand directly from Public Works Department, at Pits Mouths of the quarry sites and that they are constrained to purchase sand only from the 5th respondent. Hence, the petitioner's Association has made a representation to the District Collectors, Kancheepuram and Tiruvallur, to take action against the 5th respondent, who has been selling sand, at an exorbitant rate, and who has monopolized the trade, by storing sand, at various places, without valid licences. Till the date of filing of the writ petition, no action has been taken on the said representation. Hence, the present writ petition has been filed for the relief, stated supra.

6. The Government have issued G.O.Ms.No.32, Industries (MMC2) Department dated 11.02.2011, introducing Rule 38-C, by which, it has been made mandatory that a dealer in sand has to obtain a licence for setting up of a stockyard. The Rule also mandates that a 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 sites. The sale slips have to be counter-signed by the Deputy Tahsildar. The said rule has been challenged in a batch of writ petitions in W.P.Nos.14180 of 2011, etc., [M.Palanisamy v. The State of Tamil Nadu], wherein, it was contended that the transport permits or the sale bills issued by the PWD is pertaining to the sale and transport of a 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 Public Works Department. 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 and 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 Public Works Department. It is stated that the conditions imposed by way of impugned Government Order, are totally without jurisdiction, per se illegal and without any authority of law. According to the petitioners therein, the conditions imposed violated the provisions contained under Article 14 & 19(1)(g) of the Constitution of India and that they are against the law laid down, by the Supreme Court and the High Court.

7. Among other contentions made by the Government of Tamil Nadu, in the batch of writ petitions, to sustain Rule 38-C, the Joint Secretary to the Government, Industries Department, Government of Tamil Nadu, in his counter affidavit, has stated as follows:

"35. It is to be noted that the then Joint Secretary to the Government, Industries Department, Government of Tamil Nadu, in his affidavit, stated that though the Public Works Department has been quarrying sand in the entire State, the Government has received reports of illicit quarrying and transportation of sand by unscrupulous elements. In order to curtail such activities of illicit quarrying in the State of Tamil Nadu, the offence of sand quarrying has been brought within the purview of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982. In order to strengthen the regulation of mineral administration, the Government has included the officials of the Police Department, not below the rank of Inspector of Police, to exercise the power contained in sub-section (4) of Section 21 of the Act."

8. The Principal Secretary to the Government, Industries Department, in his affidavit, has stated that in exercise of such a power under the amended Rules, illegal mining of sand and smuggling to neighbouring States has been brought under control to a great extent. He has further stated that over a period of one year, 4173 cases of illegal sand mining have been filed, 5033 persons have been arrested, 5501 vehicles have been seized and dozens of persons have been taken into preventive custody and that a sum of Rs.14 Crores, has been collected as penalty, from such offenders.

9. In M.Palanisamy's case (cited supra), after considering the rival contentions and the competence of the Government to frame the rules, from prevention of illegal mining, transportation and storing of materials, The Hon'ble Division Bench of this Court, by order, dated 19.06.2012, held as follows:

"we are of the definite opinion that the statutory duty imposed upon the sand dealers under Rule 38-C of the Tamil Nadu Minor Mineral Concession Rules, 1959, for the purpose of preventing illegal mining, storage and transportation of sand, cannot be held as illegal, arbitrary, ultra vires the Constitutional provisions or any of the provisions of the Act. We hold that Rule 38-C of the said Rules is fully in conformity with the provisions of the Act and the Rules, and it cannot be held as an excessive exercise of power by the State Government." (emphasis supplied)

10. Reverting back to the case on hand, the details of the Tax Invoices-Cash Bill/Way Bill, issued by the 5th respondent with a seal, enclosed in the Typed Set of Papers, are as follows:

Invoice No. Tin No. Name of the Contractor and Branch address Date and Time of Bill Survey Nos.

Writ Petitions and Miscellaneous Petitions Unit Amount with 5% VAT Tax [Rate per Unit = 2,381] Rs.

1923

33771-980893 M.Palanisamy, Palayaseevaram Village, Kancheepuram Taluk & District.

18.11.2012 10.55 AM 455/3,455/4, 455/6, 455/8, 455/9, 455/10, 456/2B WPMP.14156, 14157 & 20591 of 2005 in W.P.12934, 12935 and 19053 of 2005, dated 08.08.2005.

9,524 + 476 = 10,000/-

6369

33771-980893 M.Palanisamy, Vallimedu Village, Ilayanuvellore Madura, Kancheepuram Taluk & District.

23.11.2012 03.40 PM 212/1C, 213/6 WPMP.No.15270 of 2011 in W.P.No.2 of 2011, dated 01.07.2011.

9,524 + 476 = 10,000/-

1910

33771-980893 M.Palanisamy, Gurupuram Village, Meiyur Post, Oothukkottai Taluk, Tiruvallur District.

30.11.2012 10.15 AM., 32, 33, 36, 37A, 39/1, 2, 3, 4, 40/D, 42/2A, 2B, 3A, 3B, 3C, 3E, 3F, 51/2B, 2D, 3, 4A, 4B, 4C, 4D, 5A, 5B, 5C, 5E, 5F and 145/7B MP.No.1 of 2011, in WP.No.20588 of 2011, dated 17.09.2011 3 7,143 + 357 = 7,500/-

2947