Madras High Court
R.G.N.S.Enterprises vs The Commissioner on 11 October, 2013
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.10.2013
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.27870 of 2013
M.P.No.1 of 2013
R.G.N.S.Enterprises,
rep. by its Managing Partner,
Mr.M.Gokulakannan ... Petitioner
Versus
1. The Commissioner,
Department of Geology and Mining,
Thiru.Vi.Ka. Industrial Estate,
Guindy, Chennai 600 032.
2. The District Collector,
Nilgiri District.
3. The Superintendent of Police,
Nilgiri District.
4. The District Forest Officer,
Gudalur, Nilgiri District.
5. The Revenue Divisional Officer,
Gudalur, Nilgiri District.
6. The Deputy Superintendent of Police,
Devela and Gudalur, Nilgiri District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Mandamus, forbearing the respondents from interfering with the petitioner's right to carry on trade and petitioner's customer right to transport sand from Puducherry to Kerala and other States with valid documents checked and vouched by the border security post of Tamil Nadu.
For Petitioner .. Mr.M.J.Jaseem Mohammed
For respondent .. Mr.R.Vijayakumar,
Additional Government Pleader
O R D E R
The petitioner has sought for a Mandamus, forbearing the respondents from interfering with his right to carry on trade and his customer right to transport sand from Puducherry to Kerala and other States with valid documents, checked and vouched by the border security post of Tamil Nadu.
2. It is the case of the petitioner that he is engaged in the business of interstate transportation of sand to Kerala, Karnataka and other States, on order basis from any customers, authorised by the Government of Puducherry. He is engaged in the business of re-sale of sand, by purchasing the same from the authorised outlet dealers and that the sand purchased is stocked at his godown. He possess a stockyard with the approval of the Deputy Commercial Tax Officer (DC), Commercial Tax Department, Puducherry. According to him, for transporting sand to the State of Kerala, he has to cross Tamil Nadu border.
3. While that be the position, while transporting sand, the subordinates of respondents have interfered with his right to carry on business, without any reason, despite the availability of the necessary documents, pertaining to transportation of sand, issued by the Union Territory of Puducherry.
4. It is the case of the petitioner that in the name of checking and verification, at the inter-state border, subordinates of the respondents have constantly interfered with his business, under the mistaken impression of illegal transportation of sand. In this regard, he has made representations, dated 18.01.2013 and 23.09.2013, through the associations, and also approached the respondents, in person, explaining that the sand is neither transported to the State of Tamil Nadu nor there is transaction of sand, in Tamil Nadu. Despite periodical requests, the subordinate officials of the respondents, still continue to stop the vehicles, at the every check post. Hence, he has prayed for a Mandamus, as stated supra. When the matter came up for hearing, oral submission was also advanced that sand is being purchased from the State of Karnataka and transported to Pondicherry.
5. In addition to the abovesaid pleadings, learned counsel for the petitioner also placed reliance on the transit permits, issued by the Pondicherry Agricultural Products, Food and Consumer Articles Marketing Corporation and other documents enclosed in the typed set of papers.
6. Mr.T.Murugesan, learned Senior Counsel and Government Pleader (Pondicherry) submitted that as per Rule 72 of the Pondicherry Minor Minerals (Concession) Rules, 1977, no permission is granted by any authority, for transporting sand, outside the Union Territory of Pondicherry. The submission of the learned Government Pleader (Pondicherry) is placed on record.
Heard the learned counsel for the parties and perused the materials available on record.
7. Perusal of the xerox copies of the transit permits filed by the petitioner clearly shows that permits have been issued for transportation of the river sand from Survey No.103/pt, Manamedu Village, Bagur Taluk, Pondicherry and the places of destination is within the Union Territory of Pondicherry. Xerox copies of the transit permits produced before this Court shows that such permits have been issued between 15.10.2012 and 08.12.2012 and in all the xerox copies, the name of the petitioner is not mentioned. Whereas, at Col.No.10, viz., person responsible for transportation/full name of the owner, different names are mentioned. The seal affixed on the xerox copies clearly indicate that the sand sold by the competent authority is intended for resale and that the place of destination is within the Union Territory of Pondicherry. Seal affixed clearly states that permit is valid for Pondicherry sales only. For better appreciation, the seal affixed is extracted hereunder:
THIS PERMIT IS VALID FOR PONDICHERRY JURISDICTION SALES ONLY
8. As per the entries in the xerox copies of the Registration Certificate, issued under Rule 45 of MCDR, 1988 Indian Bureau of Mines (Ministry of Mines), the activity of the petitioner is storage of mineral in R.S.No.54/4B, Kanniyakoil, Pondy-Cuddalore Main Road, Kanniyakoil, Bahoor 607 402 and that Registration has been done on 31.01.2012. No materials have been placed before this Court to prove that the registration of the petitioner for storage and transportation of sand and any other mineral is currently in force.
9. Document, dated 16.02.2013, enclosed in the typed set of papers, is the invoice of the petitioner, dated 16.02.2013, by which, Silica sand is stated to have been sold to a person in Kerala. No orders issued by any competent authority, under the Pondicherry Minor Mineral (Concession) Rules, 1977, have been placed before this Court, to substantiate the contention that the sand is permitted to be transported from the Union Territory of Pondicherry to Kerala or any other State, across the border of Tamil Nadu or any other State. At this juncture, it is pertinent to extract Rule 72 of the Pondicherry Minor Minerals (Concession) Rules, 1977, which states as follows:
72. Restriction on the transport of the mineral:- (1) The holder of a mining lease or mining permit or a person authorised by him, in this behalf shall issue a pass in Form MM.11 to every person carrying a consignment of minor mineral by a vehicle animal or any other mode of transport.
(2) No person shall carry within the Pondicherry territory a minor mineral by a vehicle, animal or any other mode of transport, excepting railway, without carrying a pass in Form MM.11 issued under sub-Rule (1).
(3) Every person carrying any minor mineral shall on demand by any officer of the State Government authorised in this behalf, show the said pass to such officer and allow him to verify the correctness of the particulars of the pass with reference to the quantity of the minor mineral.
(4) The State Government may establish a check post for any area included in any mining lease or permit, and when a check post is established public notice shall be given of this fact by publication in the Gazettee and in such other manner, as may be considered suitable by the State Government.
(5) No person shall transport a minor mineral to which these rules apply from such area without first presenting the mineral at the check post fixed for that area for the purposes of verification of the weightment (or) measurement of the quantity of the mineral.
5-A. No person shall transport any minor mineral in a vehicle without covering the same with a carpet.
(6) Any person found to have contravened any provision of sub-rule (2) (3) (5) or (5-A) above shall on conviction, be punishable with imprisonment of either description for a term which may extend upto six months or with fine which may extend to one thousand rupees or both.
10. As per Sub-Rule (5) of Rule 72 of the abovesaid Rules, no person shall transport a minor mineral to which the rules apply, for such area, without first presenting the mineral at the check post fixed for that area for the purposes of verification of the measurement of the quantity of the mineral. Sub-Rule (6) of the said Rule, states that any person found to have contravened any provision of sub-Rules (2), (3), (5) or (5-A), such person, shall, on verification, be punishable with imprisonment of either description for a term, which may extend upto six months or with fine, which may extend to one thousand rupees or both. While considering as to whether, the authorities under the Mining Laws, in Pondicherry, have permitted transportation of sand, outside Pondicherry, the words within the Pondicherry Territory and such area assume significance. Permits issued under the Pondicherry Minor Minerals (Concession) Rules, 1977, in the context, in which, the words are used in Rule 72 of the Rules, clearly indicate that the authorities have not issued any permits to transport sand, outside the Union Territory of Pondicherry.
11. Material on record further shows that when the Revenue Divisional Officer, Thenkasi, by letter No.A3/176/2012, dated 11.01.2012, has sought for a clarification, as to whether, transportation of sand to Kerala, is permissible from Puliayari Village, Shencottai Taluk. After getting a legal opinion, dated 08.03.2012, from Mr.M.Govindan, learned Special Government Pleader, Madurai Bench of this Court, Madurai, the District Collector, Tirunelveli, has sent a reply to the Revenue Divisional Officer, Thenkasi that the vehicles bearing Registration Nos.TN 28 AF 6390, TN 28 AF 5058 and TN 28 AM 6498, stopped at Puliyari Police Check Post, may be released. Accordingly, the Revenue Divisional Officer, Tenkasi, vide proceedings No.A3/176/2012, dated 17.03.2012, has released the vehicles, on production of necessary documents. Pursuant to the above, the Revenue Divisional Officer, Tenkasi, has also released the vehicles, bearing Registration Nos.TN 57 V 7886, TN 19 D 6668 and TN 28 K 3508, vide proceedings in Na.A1/460/2012, dated 01.05.2012.
12. The abovesaid legal opinion has been given, after considering the judgement made in W.P.No.1209 of 2012, dated 30.01.2012 [M/s.R.C.N.S.Enterprises v. The District Collector, Tirunelveli District]. Inasmuch as, the abovesaid order of the District Collector, Tirunelveli, is based on the above unreported decision of this Court, this Court deems it fit to consider the facts and circumstances of the said case. The abovesaid writ petition has been filed by the petitioner therein, for a similar prayer, ie., for a Mandamus, forbearing the respondents from interfering with his right and his customer's right to transport sand from Puducherry to Kerala, with valid documents checked and vouched by the border check posts of Tamil Nadu. In the unreported judgment, the issue, as to whether, the Government of Pondicherry have permitted inter-state sale of sand has not discussed and decided. The authorities therein have been directed to consider and take a decision. Taking note of the submissions, made on behalf of the parties, at Paragraph 5, this Court has ordered as follows:
5. In view of the submissions made on behalf of the petitioner, as well as the respondents, this Court is of the view that a general direction, as prayed for, by the petitioner, in the present writ petition, cannot be issued. However, it is made clear that the respondents shall consider the documents furnished by the petitioner and its customers, to verify if the transportation of sand is in compliance with all the necessary conditions applicable to such transportation, and if such transportation is being done, as per the statutory provisions, which are applicable to the case. It is for the authorities concerned to take a decision, on a case to case basis and pass appropriate orders, as they find it fit to do so, in accordance with law, by following the necessary procedures.
13. In the decision, stated supra, no law has been laid down by this Court and hence, it cannot be treated as a Precedent. At this juncture, this Court deems it fit to consider, some of the decisions of the Apex Court, as to when a decision can be taken as a Precedent.
14. In State of Orissa vs. Sudhansu Sekar Misra, reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, which as follows:-
A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495.
'Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not profitable task to extract a sentence here and there from a judgment and to build upon it.
15. In Union of India Vs. Dhanwanti Devi, reported in 1996 (6) SCC 44 = 1996 (7) Supreme 51, at page 51, the Supreme Court has explained, what constitutes a precedent, which as follows:-
"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla case reported in 1993 Supplement (2) SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an intelligent technique in the use of precedents. It would, therefore, be necessary to see whether Hari Krishnan Khosla case, reported in 1993 Supp (2) SCC 149, would form a binding precedent. Therein, admittedly the question that had arisen and was decided by the Bench of three Judges was whether solatium and interest are payable to an owner whose land was acquired under the provisions of the Central Act? On consideration of the facts, the relevant provisions in the Central Act and the previous precendents bearing on the topic, the Court had held that solatium and interest are not a part of compensation. It is a facet of the principle in the statute. The Central Act omitted to provide for payment of solatium and interest since preceding the acquisition the property was under requisition during which period compensation was paid to the owner. The position obtained and enjoyed by the Government during the period of requisition continued after acquisition. The same principle was applied without further elaboration on entitlement to payment of interest of an owner. It is true that the decisions relied on by Shri Vaidyanathan on the principle of payment of interest as part of compensation in respect of land acquired were brought to the attention of this Court for discussion. What would be its purport would be considered a little later. Suffice it to say for the present that the finding that solatium and interest are not payable for the lands acquired under the Central Act as part of compensation is a binding precedent. Obviously, therefore, this Court followed the ratio therein in Distt. Judge case reported in 1994 (4) SCC 737. The contention, therefore, that Hari Krishan Khosla case, cannot be treated as a binding precedent since therein there is no ratio but a conclusion without discussion, in not tenable and devoid of force. In that view, it is not necessary to discuss in extenso the effect of the decisions cited by Sri.Vaidyanathan. Equally, the contention of Shri.Vaidyanathan that the ratio in Hari Krishan Khosla case is in conflict with the ratio in Satinder Singh case, reported in 1961 (3) SCR 676 = AIR 1961 SC 908 which was neither distinguished nor overruled and that the decision of a coordinate Bench, cannot have the effect of overruling decision of another coordinate Bench, cannot be given countenance. The effect of the ratio in Satinder Singh case will be considered a little later; suffice it to state that there is no conflict in the ratio of these two cases, if the facts in Satinder Singh case are closely analysed and the principle laid down therein is understood in its proper perspective. Therefore, Hari Krishan Khosla case, cannot be held to be per incuriam nor has it the effect of overruling the ratio decidendi of Satinder Singh case (1961) 3 SCR 676 : AIR 1961 SC 908.
16. In Government of W.B vs. Tarun Roy and others, reported in 2004 (1) SCC 347, as regards binding precedent of a judgment, the Supreme Court at paragraph 26, has observed as follows:-
26.......... If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.
17. In State of Punjab v. Devans Modern Breweries Ltd., reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343, of the judgment are relevant and they are as follows:-
Precedent: 334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure:
A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and malleable No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)
335. However, although a decision has neither been reversed nor overruled, it may cease to be law owing to changed conditions and changed law. This is reflected by the principle cessante ratione cessat ipsa lex.
It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146-47.)
336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes.
339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in 2003 (7) SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in AIR 1966 SC 1686 and K.K. Narula, reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority.
343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores and K.K. Narula read together can be said to have been passed sub silentio or rendered per incuriam.
18. Having regard to the principles of law laid down by the Apex Court, the decision made in W.P.No.1209 of 2012, dated 30.01.2012 [M/s.R.C.N.S.Enterprises v. The District Collector, Tirunelveli District], cannot, at any stretch of imagination, be treated as a precedent. Though the learned counsel for the petitioner further submitted that on the very same lines, this Court has ordered W.P.No.20654 of 2013, dated 29.07.2013 [Udayam Enterprises v. State of Tamil Nadu], yet again, with due respect, the abovesaid decision also cannot be treated as a binding precedent. Directions given to consider the individual cases, with reference to the rules and documents produced, cannot be said to lay down the law.
19. From the transport slips enclosed in the typed set of papers, it could be deduced that sand sold from PAPSCO, is intended only for home consumption, within the Union Territory of Pondicherry. The market area is clearly specified in the permits. As per Sub-Rules (2) and (4) of Rule 72 of the Pondicherry Minor Mineral Concession Rules, 1977, what is permitted is the movement of sand, within the Union Territory of Pondicherry, with a condition to produce necessary transport permits and that there is no freedom of movement or transportation of sand, outside Pondicherry.
20. The words within Pondicherry and such area employed in Rule 72, coupled with the transport permits, with a specific seal that, THIS PERMIT IS VALID FOR PONDICHERRY JURISDICTION SALES ONLY convey only one meaning that intra-state sale of sand alone is permissible. The ordinary meaning of the word, area as per Oxford Dictionary, is (1) an inner-city area DISTRICT, region, zone, sector, quarter, locality, locale, neighbourhood, parish, tract, belt; (2) specific areas of scientific knowledge FIELD, sphere, discipline, realm, domain, sector, province, territory, line; (3) the dining area SECTION, space; place, room; (4) the area of a circle EXPANSE, extend, size, scope, compass; dimensions, proportions. Area, as defined in Burton's Legal Thesaurus, means, area, , arena, bounds, confines, demesne, domain, expanse, field, jurisdiction, limits, location, orbit, place, premises, purview, range, vicinage, vicinity, zone.
21. In D.Papiah v. Mysore State Transport Appellate Tribunal reported in 1976 (1) SCC 953, at Page 957, the Supreme Court, in the context of the rule, considered in the above case, held that, the word area in the first proviso to Section 45(1) of the Motor Vehicles Act, 1939, means the area of motorcycle roads within the territorial jurisdiction of a regional transport authority. The said judgment can be made applicable to the present case, for the limited extent, that the authorities under the Mining Laws, in Pondicherry, have granted transport permission only for Pondicherry Sales only. The word territory as per Warton's Dictionary, means a geographical area included within a particular Government, the portion of the earth's surface that is in exclusive possession and control.
22. The word, within has been defined in Chamber's Twentieth Dictionary, as, within, or to the inner part of (arch), inside, in the limits of; not going within beyond, on the inner side of area.
23. In Joseph v. Excise Commissioner reported in 1988 (2) KLT 913, at Page 917, the Kerala High Court held that the word within means, inside the limts of. Thus, from the above definitions, reading of Rule 72, of the Pondicherry Minor Mineral Concession Rules, 1977, coupled with the transport permits with the restrictions on sale of sand, only within the Union Territory of Pondicherry, this Court is of the view that Rule 72 of the Pondicherry Minor Mineral Concession Rules, 1977, clearly reflects the legislative policy of the Government of Pondicherry. No right has been conferred on the petitioner to transport sand, throughout the territory of India, ie., from Pondicherry to any other State. It is impermissible to expand the applicability of the transport permits, to other territories.
24. In the light of the submission of the learned Government Pleader for Pondicherry that under Rule 72 of the Pondicherry Minor Mineral (Concession) Rules, 1977, no permission is granted by the authorities, for transportation of sand outside Kerala, the words, within the Puducherry Territory and such area should be meant that permission is granted for transportation of sand, intra-state only and not inter-state. At this juncture, it is relevant to consider Rules 38-A and 38-B of the Tamil Nadu Minor Mineral Concession Rules, 1959. In D.Sivakumar v. The Government of Tamil Nadu reported in 2009 (3) CTC 97, a Hon'ble Division Bench of this Court, after considering catena of decisions, has upheld the validity of Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959.
25. As per Rule 38-B of the Tamil Nadu Minor Mineral Concession Rules, 1959, no transport of sand covered under Rule 38-A of the Rules, shall be made across the border to other States. Literal meaning of the words, across the border to other States in the context of the Rules, means, a carrier transporting sand cannot be permitted to cross the border of the State of Tamil Nadu and other States. As pointed earlier, all the transport permits placed before this Court by the petitioner are only intra-state sales within the Union Territory of Pondicherry and not inter-state sales. Transport permits issued by PAPSCO makes it clear that the permit is valid for Pondicherry jurisdiction sales only, in other words, not inter-state sale. A conjoined reading of Rule 72 of the Pondicherry Minor Mineral Concession Rules, 1977 and the transit permits with a specific seal in the permits to the effect that the permit is valid for Pondicherry jurisdiction sales only, makes it clear that no permission has been granted by the authorities to sell sand outside the jurisdiction of the Union Territory of Pondicherry to any other State. Therefore, the contention of the petitioner that he has been permitted by the authorities to sell sand to any customer outside the Union Territory of Pondicherry is untenable and not supported by any document. When the sale of sand is intended within the Union Territory of Pondicherry only, there cannot be any transport permits issued by any authority, to transport sand outside the Union Territory of Pondicherry. Reading of the Rule and the material on record, makes it abundantly clear that the authorities under the Pondicherry Minor Mineral Concession Rules, are competent to issue transport permits only for intra-state sale and not inter-state. No other rule has been brought to the notice of this Court, by either parties. It is the specific stand of the learned Government Pleader for Pondicherry that no permission is granted by any authority, transporting sand, outside the Union Territory of Pondicherry.
26. By the introduction of the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, there is a statutory bar for transportation of sand to other States, across the border of the State of Tamil Nadu. A Division Bench of this Court, in a batch of Writ Petitions in M.Palanisamy v. The State of Tamil Nadu reported in 2012 (4) CTC 1, has also upheld the validity of the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011.
27. Material on record, placed before this Court, do not indicate that any of the competent authorities under the Pondicherry Minor Minerals (Concession) Rules, 1977, have granted transport permits to any carrier for transporting sand, outside the jurisdiction of Union Territory of Puducherry, either to the State of Tamil Nadu or to any other State. The Government of Tamil Nadu have already promulgated Rule 38-A and 38-B of the Tamil Nadu Minor Mineral Concession Rules, 1959, extracted supra. When the intention of the Legislation is clear and unambiguous that no transport of sand under Rule 38-A of the abovesaid Rules, shall be permitted across the border of Tamil Nadu to other States, from 1st October, 2003, transportation of sand to the State of Kerala or any other State, across the border of Tamil Nadu, is not permissible, unless the petitioner satisfies that under the Pondicherry Minor Mineral Concession Rules, 1977, the competent authority has granted any transport permit to transport sand outside the jurisdiction of the Union Territory of Pondicherry to any other State.
28. It is a common feature that despite the Tamil Nadu Government, taking over the quarry rights of sand, by introduction of Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, from 03.10.2013, illegal quarrying and transportation in some districts, is rampant. The activities of the private operators are unabated. Judicial notice can also be taken that incidents are frequently reported in the newspapers that the officers are threatened with dire consequences, whenever they attempt to stop the illegal transporters.
29. Though the Government of Tamil Nadu have introduced Rule 38-B in the Tamil Nadu Minor Mineral Concession Rules, 1959, to the effect that no transportation of sand under Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, shall be made across the border of Tamil Nadu to other States, the perpetrators of law, continue to involve in illegal mining and transportation of sand to Kerala and other States, where the demand is more. The value of the sand, sold across the border, is more than the market price in Tamil Nadu.
30. It is well known that intensive deep quarrying has affected the availability of the water for irrigation, drinking. Depletion of natural resources, causes environmental imbalance and not to state about the loss to the exchequer. While there are many routes available, leading to State of Kerala, judicial notice can be taken, illegal transporters mostly prefer the routes, Coimbatore-Palacut and Kanyakumari-Trivendrum and the routes from Tirunelveli and Tuticorin Districts, probably, due to less operational costs. Now the petitioner wants to transport through Nilgiris border. Knowing fully well that vehicles at the border check posts, would be verified, by all the authorities, he has also impleaded the District Forest Officer, Nilgiris District.
31. Judicial notice can also be taken that in Kerala, the Government have framed Protection of River Banks and Regulation of Removal of Sand, 2001, to check illegal mining. Illegal transportation of sand to Kerala and other States, would be possible, if the vehicles at the exit points, are allowed, without there being any proper verification or active connivance of the authorities. Sometimes, cases have come to the notice of the Court that sand is being illegally transported by showing silica sand on the top of the carriers and hiding the sand beneath it, to cover up the illegal transportation. Silica sand is a type of sand, which is exempted from the ban. It is the procurement material for manufacturing glass and tiles.
32. Sometimes, in the process of illegal transportation of sand, either purchased from the pit mouth of Public Works Department or excavated by illegal quarrying, in the patta lands, the transport permits, issued for transportation of silica sand, are being misused. Though the provisions relating to illegal mining, storing, transportation and sale of sand, are sought to be regulated and prohibited, by incorporating penal provisions, it has not given the desired result, obviously, either due to indigenous method adopted by illegal miners or transporters, but also due to connivance or dereliction of duty, by the officers, at the check posts. At this juncture, it is pertinent to refer to Sections 4(1-A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, which empowers the competent authorities to initiate action for imposing penalties. The abovesaid Sections and Rule, are extracted hereunder:
Termination of prospecting licences or mining leases. 4(1A). 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.
21. Penalties. (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions ofsub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.
(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.
(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.
(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-section (1) shall be cognizable.
36-A. Penalties: (1) Whenever any person contravenes the provisions of sub-section (1) of section 4 of the Act in any land, enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of twenty five thousand rupees]3 shall be charged and recovered from that person by the District Collector or the District Forest Officer as the case may be or in the alternative, he shall liable to be punished as provided in sub-section (1) of section 21 of the Act :
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(2) No machinery hall be used for quarrying sand from river beds, except with the permission of the Secretary to Government, Industries Department or any other authority or Officer, as may be authorised by him in this behalf, who may grant such permission if use of such machinery will not be detrimental to ecology.
(3) Whenever any person raises without any lawful authority any mineral from any land, the District Collector or the District Forest officer, as the case may be, may recover from such person the mineral so raised or where such mineral has already been disposed of, the price thereof, and may also recover from such person, area assessment, seigniorage fee or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this subrule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(4) Whenever any person]2 contravenes the provisions of sub-rule (1) of rule 10 and in unlawful possession of any land the Director of Geology and Mining or the Chief Conservator of Forests, as the case may be, or the District Collector or the District Forest Officer, as the case maybe, shall, after giving notice, charge and recover from that person double the rate of the lease amount where the area was held under lease through public auction or its renewal or tender or double the total seigniorage fee where the area was held under lease through any other provisions of these rules, or in the alternative, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in the case of continuing contravention, with additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this subrule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(5) Whenever any person contravenes any provisions, other than sub-rule (1) of rule 10 of these rules or conditions of a quarrying permit or quarrying lease granted under these rules the Director of Geology and Mining or the Chief Conservator of Forests, as the case may be, or the District Collector or the District Forest Officer as the case may be, shall after giving notice, charge that person and recover from him enhanced seigniorage fee up to a maximum of fifteen times the normal rate subject to a minimum of twenty five thousand rupees or in the alternative he shall be liable to be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in the case of continuing contravention with additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this subrule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(6) No machinery shall be used for quarrying sand from river beds.
33. In a given case, when action is taken under Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, there is a possibility for the lorry driver or transporter to get away with the illegality, by paying a sum of Rs.25,000/-. As per Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, a person, who is transporting sand illegally, can be branded as a Goonda.
34. Though, many a times, writ petitions have been filed, for release of the seized vehicles, by the Police or the Revenue Authorities, for contravention of the statutory provisions, either by the driver or transporter or the owner or the person engaged in quarrying, transporting sand, without any valid permits, inter-state or intra-state, complaints to the Court of competent jurisdiction, under the Criminal Procedure Code, are not being preferred and in some cases, even FIRs are not registered. But the vehicles are kept in the custody of the Police Stations and the matter of seizure of the vehicles, with the mineral, is reported to the concerned Revenue Divisional Officer and in such cases, the concerned Revenue Divisional Officers or the authority empowered to exercise the powers under Section 21 of the Act, 1957, do not prefer any complaints. It is the duty of the authorities under the Mining Laws to strictly enforce the penal provisions. If the authorities confer with the power of preferring complaints to the Court of competent jurisdiction, they must record reasons in writing. The Secretary to the Government, Industries Department, Chennai; Commissioner of Geology and Mining, Guindy, Chennai; District Collectors and the Superintendents of Police, should monitor the activities of their subordinates and in the event of any failure, by the subordinates in not enforcing the penal provisions and take appropriate criminal action, despite acceptable evidence, to prove the guilt, then departmental action should be taken against them. If there is any evidence, leading to the culpability of the offence, prosecution should be launched.
35. Though the Government of Tamil Nadu have promulgated laws, stopping quarrying operations, by the individuals, in certain districts, illegal quarrying still continue unabated. It would be an appreciable and would reduce the illegal mining, storage and transportation of sand, if stringent action is taken against those, who are involved in illegal mining, under Act 14 of 1982 or the offenders are prosecuted, under the Mining Laws, if there is acceptable evidence. It could be noticed that action against officials alone is taken and the perpetrators of law are scot free.
36. It is, in this context, this Court deems it fit to direct the 1st respondent, the District Collector and the Superintendent of Police, to issue appropriate directions to their Subordinate Officers, to distinguish what kind of minerals, are permitted to be transported, inter-state or intra-state and what are the documents, required to be possessed and displayed to the officers, at the check posts, particularly, whether the authorities under the Mining Laws have permitted inter-state sale of any mineral and whether transport permits are issued by the competent authorities, to transport any mineral, outside the territories, from which, first sale has been made. The Commissioner, Department of Geology and Mining, Guindy, Chennai and the District Administration, including police have to issue suitable instructions to the Officers, at the check posts, across the State of Tamil Nadu, through any point, leading to Kerala or any other State, to be more vigilant and the authorities are directed to monitor, as to whether, the officers, strictly enforce the statutory provisions and the directions. Collusion or connivance, if any, noticed, should be dealt with stringent action.
37. When inter-state transportation is impermissible under Rule 38-B of the Tamil Nadu Minor Mineral Concession Rules, 1959, across the border, to other States, the contention of the petitioner that he must be permitted to transport sand to Kerala, through Tamil Nadu borders, particularly, Nilgiris District, and the present writ petition, filed for a Mandamus, forbearing the respondents from interfering with the petitioner's right to carry on trade and petitioner's customer right to transport sand from Puducherry to Kerala and other States, with valid documents, checked and vouched by the Border Security Post of Tamil Nadu, is beyond the legislative policy of the Government of Tamil Nadu, which has prohibited transportation of sand across the border of Tamil Nadu. Such prayer can be considered only when the petitioner substantiates that inter-state sale and transportation, has been permitted by the authorities, under the Pondicherry Minor Mineral Concession Rules, 1977 or the State laws of Tamil Nadu.
38. As per Rule 38-C of the Tamil Nadu Minor Mineral Concession Rules, no person shall transport sand without a valid transport permit issued by the Public Works Department or without a sale slip of Licencee duly authenticated by the taluk headquarters Deputy Tahsildar of the jurisdiction from which the said is transported. Though the abovesaid provision is applicable only to a licencee under the Tamil Nadu Minor Mineral Concession Rules, 1959, no materials have been placed before this Court to prove that the petitioner, a licencee, to store sand is permitted to transport sand outside the Union Territory of Pondicherry.
39. As stated supra, when the matter came up for hearing, learned counsel for the petitioner orally submitted that sand is purchased from Karanataka and transported to Puducherry or the State of Kerala. Judicial notice can also be taken that transportation of sand from Karnataka to any neighbouring State, has been banned in the year 2010 itself. Again, no materials have been placed before this Court to substantiate that the sand purchased from Karnataka has been permitted to be taken, outside Karnataka, for further sale to the buyers in Kerala. No transport permits issued by the Karnataka authorities have been placed before this Court to prove that permission has been granted by them, to transport sand outside Karnataka. No document has been filed to prove that sand is being purchased from Karnataka.
40. Sand, a natural resource, available at certain river beds, lakes, channels and some patta lands, are stealthily being transported to other States and that is why, the Government of Tamil Nadu have introduced Rule 38-B in Tamil Nadu Minor Mineral Concession Rules, 1959. When Inter-state sand is prohibited across the border of Tamil Nadu, by introduction of Rule 38-B of the said Rules, the same was challenged, as ultra-vires of the Constitutional provisions of Article 301 and 304. At this juncture, it is pertinent to refer the said Articles, which are as follows:
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 purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
41. After considering the rival submissions, the Hon'ble Division Bench of this Court, at Paragraphs 9 and 10, in D.Sivakumar v. The Government of Tamil Nadu reported in 2009 (3) CTC 97, held as follows:
9.We have considered the submissions made on behalf of the learned senior counsel appearing on behalf of the petitioners and the 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 sanction of the President. On a reading of Article 301 of the Constitution of India it is clear that trade, commerce and intercourse throughout India shall be free. Similarly, Article 304 of the Constitution grants power to the State Legislature to make law with regard to restrictions on trade, commerce and intercourse among States. The State legislature cannot introduce any bill regarding the above said subjects without the previous sanction of the president. Hence it is clear that the protection given under Article 301 of the constitution is subject to Article 304, provided the law has been made by the State Legislature by complying with the procedure contemplated under the proviso to Article 304. We may also note that Article 302 provides for making of the law by the parliament to impose restrictions on trade, commerce and intercourse. Shri.V.T.Gopalan has contended that the prohibition made under Rule 38(B) of the Tamil Nadu Minor Minerals Concession Rules, 1959 is in violation Article 301 since it infringes one's freedom of Trade and the said rule is also in violation of Article 304 since no prior sanction from the President of India has been obtained. We are not in agreement with the submission made by the learned counsel for the simple reason that the rule 38(B) has been introduced by the State as the delegate of the Parliament to carryout the purpose of Section 23-C of the Parent Act. In other words the contention raised by Shri.V.T.Gopalan does not arise for consideration, since rule 38(B) has been introduced not deriving the power under Article 304 of the Constitution of India but under Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957. The said issue has been considered by the Hon'ble Supreme Court in (1997) 3 SCC 665 [State of Tripura v. Sudhir Ranjan Nath. It is held therein in paragraph 21 of the said judgment that the impugned rule having been made by the State as the delegate of parliament to carry out the purpose of the Act cannot be held to be in contravention of Article 301 of the Constitution. The Hon'ble Supreme Court has further held that in such a situation the compliance of the procedure contemplated under Article 304-B of the Constitution does not arise for consideration. Further the judgment relied on by Shri.V.T.Gopalan in (2006) 7 SCC 241 [Jindal Stainless 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.
42. The words across the border of Tamil Nadu, should be strictly interpreted and given effect to, in letter and spirit, meaning, thereby, no transportation of sand should be permitted across the border of State of Tamil Nadu, whether it is from Coimbatore, Nilgiris, Karur, Trichy, Tirunelveli, Tuticorin and Kanyakumari Districts, or any other districts, unless the transporter, supplier or seller proves with authentic materials that inter-state sale and transportation is permitted by the competent authorities.
43. Rule 38-A has been inserted in the Tamil Nadu Minor Mineral Concession Rules, 1959 in G.O.Ms.No.95, Industries, dated 1st October, 2003 and today, there may not be any case of lease, by virtue of Rule 38-A of the Rules. The right to exploit sand in State of Tamil Nadu vests with the Government. Even taking it for granted that there could be an arguable point that by virtue of Section 38-B, the prohibition imposed for transportation of sand, covers only under Rule 38-A and not the sand purchased from Puducherry or Karnataka, no materials have been placed by the petitioner to prove that he is a purchaser of the sand from Karnataka and that he is permitted to transport the same to Kerala or Tamil Nadu. But, as stated supra, materials in the typed set of papers, only indicate that he has purchased sand from PAPSCO, in 2012 and that there is only one document in the typed set of papers, viz., Invoice, dated 16.02.2013, issued by the petitioner to substantiate that he has sold 6 units of silica sand to the tune of Rs.31,500/-.
44. Though the petitioner has claimed to have registered himself in dealer in VAT and CST, under the Central Sales Tax (Pondicherry) Rules, 1967 and Puducherry VAT Act, 2007, as stated supra, no transit permits issued by the authorities, under the abovesaid statutory provisions, have been enclosed in the typed set of papers, to prove that and sold from PAPSCO, is permitted to be resold to any person in the neighbouring State of Tamil Nadu or Kerala. The petitioner has not substantiated that he has a right to sell sand outside the jurisdiction of the Union Territory of Pondicherry. Only when the petitioner establishes his right, under the statutory provisions, to sell sand outside the Union Territory of Pondicherry and consequently, proves that transport permits have been issued by the authorities to transport sand outside the Union Territory of Pondicherry, the question of considering, as to whether, the authorities have committed any illegality in preventing him from transporting sand, across the border of Tamil Nadu, arises.
45. In the light of the above discussion, on the materials produced, this Court is of the clear view that the petitioner has not established any right, under the Pondicherry Minor Mineral Concession Rules, 1977, or under the Tamil Nadu Laws. At this juncture, this Court deems it fit to consider few decisions, as to what 'right' means, and when a writ of Mandamus, can be issued.
46. The word "right, or in its plural form "rights," is a common term, of broad signification. It is a generic, abstract, and comprehensive term, having a wide scope of meaning in its various legal applications, and it has no satisfactory definition or explanation, except in connection with some concrete conception of thing out of which it grows. It may mean any legal right as the word is normally used, or it may be limited to some specific one of the large class of recognised "rights." It may be a right to do something, to have something, to be something, or even to let alone; it may refer to a right or privilege to use a highway or other public facility, or to utilise one of the great institutions of nature, or, on the other hand, it may refer to personal liberty, security, health, or property.
47. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules 3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law.
48. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law.
49. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right.
50. In State of Kerala v. A.Lakshmi Kutty reported in 1986 (4) SCC 632, the Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies.
51. In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. The remedy of a writ of mandamus is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defence legitimately open in such actions. The power to issue a writ of mandamus is a discretionary power. It is sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to issue a writ of mandamus. A writ of mandamus is not a writ of course or a writ of right but is, as a rule a matter for the discretion of the Court. In petitions for a writ of mandamus, the Supreme Court and the High Courts do not act as a Court of appeal and examine the facts for themselves. It is not the function of the Court to substitute its wisdom and discretion for that of the person to whom the judgment in the matter in question was entrusted by law. The Supreme Court does not issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded.
52. In Mr.'X' Vs. Hospital 'Z' reported in (1998) 8 SCC 296, while considering the right of privacy and the violations of personal rights, the conflict between fundamental right of the parties, at paragraph No.15, the Apex Court explained the word "right" as follows:
"RIGHT" is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the "Right". In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a "LEGAL RIGHT" are that the "right" is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right.
53. Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
(a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:
10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus,
11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
54. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied)
55. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
56. In the light of the above discussion, this Court is not inclined to accept the contention of the petitioner. The legal opinion offered by the learned Government Pleader is not binding on the respondents. The decisions relied on by the learned counsel for the petitioner, with due respect, cannot be treated as precedents, on the subject.
57. Hence, for the reasons, stated supra, the writ petitions are dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed. Registry is directed to send a copy of this order to the Secretary to the Government, Industries Department (Mining and Geology), Chennai, and to the Director General of Police, State of Tamil Nadu, to issue suitable directions, as indicated in the foregoing paragraphs, to all concerned, for effective implementation of Mining Laws. It is sincerely hoped that there would be a follow up action.
11.10.2013 skm To
1. The Commissioner, Department of Geology and Mining, Thiru.Vi.Ka. Industrial Estate, Guindy, Chennai 600 032.
2. The District Collector, Nilgiri District.
3. The Superintendent of Police, Nilgiri District.
4. The District Forest Officer, Gudalur, Nilgiri District.
5. The Revenue Divisional Officer, Gudalur, Nilgiri District.
6. The Deputy Superintendent of Police, Devela and Gudalur, Nilgiri District.
7. The Secretary to the Government, Industries Department (Mining and Geology), Fort St. George, Chennai-9.
8. The Director General of Police, State of Tamil Nadu, Mylapore, Chennai-4.
S. MANIKUMAR, J.
skm W.P.No.27870 of 2013 11.10.2013