IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 28565 of 2011(U) ------------------------------------ PETITIONER(S): ----------------------- K.M.ABOOBACKER, KUPPIYAN HOUSE, CHELAMATTAM, OKKAL P.O., ERNAKULAM, PIN-683 550. BY ADVS. SRI.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE SRI.P.N.SANTHOSH SRI.S.RAMESH SMT.POOJA SURENDRAN SRI.NAVEEN.T RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF MINING AND GEOLOGY MINING AND GEOLOGY DIRECTORATE, KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN-695 004. 3. THE SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT DISTRICT OFFICE, CIVIL STATION, KAKKANAD, ERNAKULAM, KOCHIN, PIN-682 030. R1 & R2 BY GOVT. PLEADER SMT.SANGEETHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 28565 of 2011(U) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1: A TRUE COPY OF THE ORDER NO.80/09-10/DOE/5625/E2/09 DATSED 2.12.2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2: A TRUE COPY OF THE DEALERS LICENCE NO.23/09-10/MM/MS/DL/ DOE/5626/E2/09 DATED 2/12/2009 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P3: A TRUE COPY OF THE LICENCE DATED 29/1/2010 ISSUED BY THE KOOVAPPADY GRAMA PANCHAYAT TO THE PETITIONER. EXHIBIT P4: A TRUE COPY OF THE ACKNOWLEDGEMENT (PART I) OF REGISTRATION ISSUED BY THE MANAGER, DISTRICT INDUSTRIES CENTRE,ERNAKULAM TO THE PETITIONER. EXHIBIT P5: A TRUE COPY OF THE CONSENT LETTER NO.PCB/DO-EKM/ICE-CR 14/09 DATED 12/1/2010 WITH VALIDITY UP TO 11/1/2013 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P6: A TRUE COPY OF THE NOTICE DATED 31/5/2010 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P7: PHOTOGRAPHS SHOWING THE STOCK OF WEATHERED ROCK STORED BY THE PETITIONER IN THE NEARBY PROPERTY. EXHIBIT P8: A TRUE COPY OF THE DEALERS LICENCE DATED 4/3/2011 ISSUED BY THE GEOLOGIST, DISTICT OFFICE, IDUKKI TO SRI.M.S.PUSHPARAJ, MAPPILAKUDYIL HOUSE NERIAMANGALAM. EXHIBIT P9: A TRUE COPY OF THE APPLICATION DATED 30/9/2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P10: A TRUE COPY OF THE REPLY DATED 30/9/2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P11: A TRUE COPY OF THE LETTER NO.5587/M3/2010 DATED 5/3/11 GIVEN TO THE PETITIONER. EXHIBIT P12: A TRUE COPY OF THE JUDGMENT DTD.5/9/2011 IN WPC.23314/11 OF THIS HONOURABLE COURT. EXHIBIT P13: A TRUE COPY OF THE JUDGMENT DATED 3/6/2011 IN WPC.10796/11 OF THIS HONOURABLE COURT. EXHIBIT P14: A TRUE COPY OF THE NOTIFICATION DATED 17/11/1997 PUBLISHED IN THE KERALA GOVERNMENT GAZETTE DATED 20/11/1997 DELEGATING THE POWERS OF THE 2ND RESPONDENT TO THE DISTRICT GEOLOGISTS. EXHIBIT P15: TRUE COPY OF THE JUDGMENT DTD 25/10/2011 IN W.A.NO.1570/2011 OF THIS HON'BLE COURT. EXHIBIT P16: TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED TO THE PETITIONER BY THE COMMERCIAL TAXES DEPARTMENT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// STU P.A TO JUDGE. ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) No. 28565 OF 2011 ----------------------------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T Petitioner has been issued Ext.P1 mining permit. According to the petitioner, on the basis of Ext.P1 mining permit, Ext.P3 Panchayath license, Ext.P4 registration issued by the District Industries Department and Ext.P5 consent of the Pollution Control Board, he has mined weathered rock from out of which weathered sand has been manufactured and stored. Accordingly he applied for the license from the Mining and Geology Department and by Exts.P10 and P11, the Mining and Geology Department took the stand that the weathered rock will not come under the purview of Kerala Minor Mineral Concession Rules and therefore no license can be issued. It was thereupon this writ petition was filed seeking to quash Exts.P10 and P11 and to direct the 3rd respondent to issue dealer's license and issue P Form to stock and sell W.P.(C) No. 28565 OF 2011 :2 : the sand manufactured out of weathered rock. 2. The requirements that a dealer in weathered rock should comply with have been clarified by a Division Bench of this court in the judgment in WPC 1570/11, a copy of which has been produced as Ext.P15. Paragraph 3 of the said judgment reads as under. “So far as weathered sand is concerned, since it is a manufactured product and since the respondents are dealers, they have to necessarily take registration under the KVAT Act and use delivery note or sale bill or other documents prescribed under the KVAT Act and Rules for transport of the same. The position is same so far as the river sand is concerned, and for transport of the same, the respondents have to use pass and other documents required under the Kerala Protection of River Banks and Regulation of W.P.(C) No. 28565 OF 2011 :3 : Removal of Sand Act. In view of the stand taken by the respondents that weathered sand is not a mineral requiring pass from the Geology Department for transport, we do not think there is any need for the respondents to prove the quantity produced. The respondents are therefore free to transport weathered sand manufactured by them with documents prescribed under the KVAT Act and Rules. So far as river sand is concerned, the appellant is directed to issue pass prescribed on production of documents about source of sand and on being satisfied that the respondents are mining and transporting sand from eligible source in accordance with law. The 2nd respondent will furnish all the details along with source of sand and application for the appellant for issue W.P.(C) No. 28565 OF 2011 :4 : of pass required for transportation of river sand.” 3. From the above it is clear that persons dealing with sand manufactured from weathered rock are entitled to deal with the same provided they satisfy the requirements of the Kerala Value Added Tax Act and the Rules framed thereunder. Petitioner has produced Ext.P16, which is a certificate of registration obtained under the Kerala Value Added Tax Rules which enables the petitioner to deal with the M-sand. 4. Now that he has obtained necessary registration under the KVAT and Rules and subject to possession of other documents prescribed under the said Act, he is entitled to deal with and transport M-sand manufactured out of the weathered rock. Since the position is so clarified, it is unnecessary to examine the validity of Exts.P10 and P11. Therefore clarifying that the petitioner W.P.(C) No. 28565 OF 2011 :5 : will be entitled to the position as clarified in the Division Bench judgment referred to above, the writ petition is disposed of. Sd/- ANTONY DOMINIC, JUDGE ul/- [true copy] P.S. to Judge