Orissa High Court
WP(C)/19980/2016 on 23 September, 2020
W.P.(C) No.19980 of 2016
1
13. 23.09.2020 The matter is taken up through video
conferencing.
The petitioner is a registered dealer and
interstate supplier of sand and other minor minerals
and has filed this writ application to quash the receipt
under Annexure-8 imposing penalty of Rs.25,000/- and
further seeks for a direction to opposite party no.3 to
refund the said amount with interest to the petitioner
no.2-firm and with a further direction to allow the
petitioner no.2-firm to transport the sand as per
agreement to Kerala on production of valid documents
including the transit pass.
M/s. Maa Traders & Minerals-petitioner no.2,
which is a proprietorship firm represented through its
proprietor-petitioner no.1-Lalita Farak, is carrying on its
business of interstate supply of sand and other minor
minerals. Kerala Small Industries Development
Corporation Ltd. (KSIDCL), due to scarcity of river sand
in Kerala, entered into an agreement with M/s. Sha
Traders and Minerals on 29.04.2015 vide Annexure-3
for procurement of river sand from authorized dealer
outside the State. Accordingly, the Government of
Kerala vide letter dated 19.10.2015 at Annexure-5
granted dealership licence to M/s. Sha Traders and
Minerals for importing construction grade sand from
other States. Consequentially, M/s. Sha Traders and
2
Minerals entered into an agreement with the petitioner
no.2-firm on 01.03.2016 vide Annexure-2 for supply of
river sand to the State of Kerala in the terms and
conditions mentioned therein. Accordingly, the
petitioner no.2-firm approached the opposite party no.4
for grant of necessary transit pass for procurement of
sand from the authorized lease holder and
transportation of the same to the State of Kerala. The
opposite party no.4 granted transit pass in Form-R on
05.02.2016in favour of petitioner no.2-firm. An electronic way bill dated 11.03.2016 was also issued to petitioner no.2-firm by the Commercial Tax Department, but the opposite party no.3 without any written order, compelled the petitioner no.2-firm to deposit Rs.25,000/- as penalty vide receipt under Annexure-8 for release of the vehicle at Girisola Check Gate and did not allow the vehicle to cross the border to proceed towards Kerala. Hence, this application.
Mr. S.P. Mohanty, learned counsel for the petitioner at the outset does not want to press the prayer with regard to quashing of the receipt imposing penalty of Rs.25,000/- and also does not claim for refund of the same with interest, but seeks for only direction to petitioner no.2-firm to transport the sand as per the agreement to Kerala on production of valid document including transit pass. It is further contended that in view of the judgment of the apex Court in State of Gujarat and others Etc. vrs. Jayesbhai 3 Kanjibhai Kalathiya Etc., AIR 2019 SC 1213, the petitioner can transport the river sand from outside the State.
Mr. S. Palit, learned Additional Government Advocate appearing for the State contended that the petitioner does not want to press the relief sought in the writ application, as mentioned above, so far as allowing the petitioner no.2-firm to transport the sand, as per the agreement, to Kerala on production of valid document including transit pass, is covered by the judgment of apex Court as mentioned supra.
In Jayesbhai Kanjibhai Kalathiya Etc. (supra), the apex Court held that there is no restriction on the State importing sand from other States. If it is the case that the demand of any State is not being met, it may purchase sand from other States. In any event, the market will dictate trade in sand in as much as it may make no business sense for mining company to transport and sell its sand in a far away destination after incurring large costs on transportation. Therefore, the State Government has also issued a circular on 21.12.2019 imposing certain conditions to be fulfilled by the person, who wants to transport the sand.
In view of such position, keeping in view the law laid down by the apex Court, as discussed above, and taking into consideration the circular issued by the Government dated 21.12.2019, this Court disposes of the writ petition directing the opposite parties to take 4 into consideration the same and allow the petitioner no.2-firm to transport the river sand from Odisha to Kerala by following due procedure in accordance with law.
With the above observation and direction, the writ petition stands disposed of.
As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587 dated 25.03.2020.
(Mohammad Rafiq) Chief Justice (DR. B.R. SARANGI) JUDGE GDS