IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 31198 of 2009(T) --------------------------------- PETITIONER(S): ------------------- SUJA THOMAS, KOYIPPURATH HOUSE, AYARKUNNAM P.O.,KOTTAYAM DISTRICT. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): -------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. DISTRICT GEOLOGIST, COLLECTORATE POST, KOTTAYAM -2. 3. THE SUB INSPECTOR OF POLICE, AYARKUNNAM POLICE STATION, KOTTAYAM DISTRICT. R1 TO R3 BY GOVT. PLEADER SRI.K.SANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 31198/2009(T) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SEIZURE MEHASSER BY THE THIRD RESPONDENT DATED 15/09/2009. P2: COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 20/09/2009. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31198 of 2009-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of November, 2010. JUDGMENT The petitioner is aggrieved by Ext.P2 order passed by the District Collector, directing confiscation of ten lorry loads of sand which was kept in the residential premises of the petitioner. 2. The petitioner's contention is that she was a licensed dealer of ordinary sand and therefore the very presumption under which the order Ext.P2 is passed by the District Collector, cannot be supported. 3. The pleadings of the petitioner show the following: The petitioner was issued a licence under Rule 48A of the Kerala Minor Mineral Concession Rules which was valid till 31.3.2009. The licence was one for dealing in ordinary sand. According to the petitioner, she was trading ordinary sand upto 13.8.2008 and because of certain family problems, she had to discontinue the trading. It is also stated that licence fee for trading of ordinary sand was paid in advance and the second respondent, viz. the District Geologist had verified the statements maintained by the petitioner as provided under Rule 48F of the Rules. It is averred that during the period of licence there was no complaint against her. It is pointed out that there wpc 31198/2009 2 were some left over sand which was not meant for sale, as the same was not of good quality since it has got more content of sludge. She was intending to use the same for her personal use to plaster her house as she was residing in an old ancestral house plastered with lime and sand. 4. The sand was seized by Ayarkunnam Police as per Ext.P1 mahazar on 15.9.2009. A reading of Ext.P1 shows that it was seized on the presumption that it was unauthorisedly collected, which according to the petitioner, is not correct. The petitioner thereafter moved the District Collector stating that the sand seized was ordinary sand and it was remaining as left over and she was having valid permit upto 31.3.2009. Therefore, it is pointed out that the same is not unauthorisedly stored sand. 5. Learned counsel for the petitioner submitted that the petitioner was a dealer in sand and therefore it cannot be treated as an uanthorised collection. The proceedings have been issued really under th Minor Mineral Concession Rules. The only power therein is under Rule 48L which reads as follows: “48L. Checking of unauthorised dealing in minor mineral:- Any person who possesses any minor mineral for consumption or for sale or consumed or sold any minor mineral shall if so required produce sufficient proof to the competent authority or to any other person authorised in his behalf by the competent authority or the wpc 31198/2009 3 Government, to the effect that the minor mineral had been purchased from any duly authorised producer or dealer as the case may be. If he fails to produce sufficient proof to that effect the competent authority or such authorised person may recover the minor mineral or where such mineral has already been disposed of or consumed the price thereof and also recover from the person the royalty or tax and fine, if any imposed.” The latter part of the rule enables the competent authority or such authorised person to recover the minor mineral or where such mineral has already been disposed of or consumed, the price thereof and also recover from the person the royalty or tax and fine, if any imposed. 6. The said rule was under challenge before this Court and the decision is reported in Kalyanam Tile Co. v. State of Kerala (1988 (1) KLT 153). It was contended that the said rule is ultra vires of the Mines and Minerals (Regulation and Development) Act, 1957. This Court held that the latter portion of Rule 48L which provides for recovery of the minor minerals or its value if already disposed of or consumed and fine is beyond the rule making power of the Government. The dictum laid down in para 7 reads thus: “7. The next attack is against Rule 48L. For a proper understanding of that provision, I read the same. xxxxxxxxxxx wpc 31198/2009 4 Petitioner purchases minor mineral for consumption. In the manufacturing process the petitioner use the minor mineral purchased from others. As per this Rule, if the competent authority calls on the petitioner to furnish details of the person who sold the minerals the petitioner is bound to give the details. That provision cannot be objected to by the petitioner. The Government have got power to frame rules regulating the grant of quarry lease etc. and for purposes connected therewith as is evidenced from S.15(1) of the Act. The purchaser when called upon to maintain register giving the details of the persons who sell the minor minerals to him, that rule will squarely fall within the scope of S.15(1) because it will be a measure regulating the quarrying or mining of minor minerals. So the earlier part of Rule 48L is not objectionable and is intra vires the Act. As per Section 15(3) the Government can make rules authorising levy of royalty from the holder of a mining lease. The rule making power conferred by the Act does not authorise the Government to frame Rules enabling it to confiscate the minor minerals in default of payment of royalty by the holder of a mining lease or any other person mentioned in Clause 3 of S.15 of the Act. The person who has purchased the minor minerals from the holder of a mining lease if fails to give the details of the lessee who sold the minerals to him the Government can at best recover the royalty from such person. Nothing more than that. He cannot be made to pay the value of the minerals. The latter portion of Rule 48L which provides for recovery of the minor minerals or its value if already disposed of or consumed and fine is beyond the rule making power wpc 31198/2009 5 of the Government. So the latter portion of Rule 48L which provides for recovery of the value of the minerals from the purchaser must be held to be ultravires S.15 of the Act. The Government can recover from the person who fails to give details of the person from whom he purchased the minor minerals only royalty, tax and fine that have been fixed under the Rules.” Therefore, the maximum that can be done is only to recover the royalty, tax and fine that has been fixed under the rules. 7. Herein, learned counsel for the petitioner submitted that the royalty would have already been collected from the person from whom the petitioner has purchased the sand. Whatever that be, the confiscation cannot therefore survive, in the light of the above dictum. 8. In that view of the matter, the order impugned, viz. Ext.P2 is quashed. The petitioner is therefore entitled for the release of the seized sand and the same shall be released to the petitioner within a period of three weeks. With regard to the question whether the petitioner is liable to pay any royalty, the matter will be redetermined by the District Collector with notice to the petitioner and the petitioner will be allowed to adduce all wpc 31198/2009 6 evidence in the matter and a fresh order will be passed within a further period of three months. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/