1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.09.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.7509 of 2011 M.P.(MD)No.1 of 2011 S.Nagarajan ... Petitioner Vs. 1. The Secretary to Government, Industries (MMC) Department, Secretariat, Chennai-9. 2. The District Collector, Tirunelveli District, Tirunelveli. 3. The Assistant Director, Department of Geology and Mining, G.F.201, Tirunelveli District, Tirunelveli. 4. The Superintendent of Police, Tirunelveli District, Tirunelveli. 5. The Deputy Superintendent of Police, Tenkasi, Tirunelveli District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Mandamus, directing the respondents and their men not to prevent the petitioner from transporting Crusher Dust from Tamil Nadu to Kerala For Petitioner .. Mr.S.Nagarajan (Party-in-Person) For Respondents .. Mr.B.Pugalenthi, Special Government Pleader ORDER Thiru.S.Nagarajan, party-in-person, has filed the present writ petition, for a Mandamus, directing the respondents and their men not to prevent him from transporting Crusher Dust from Tamil Nadu to Kerala through Puliyarai Check Post at Shencottah at Shencottah Taluk, Tirunelveli District. 2.It is the case of the petitioner that he owns a business establishment, in the name and style of "Pradeep Visu Agency", dealing with the commodities, like Blue Metal, Jelly Dust, Sand, Bricks, Hollow https://hcservices.ecourts.gov.in/hcservices/ 2 Blocks, Metal Chips and Casuarinas Poles. As a part of the said business, he is also transporting Crusher/Jelly Dust to Kerala, by purchasing it from the authorised quarry mines, with necessary bills. He has registered his business both under the Tamil Nadu Sales Tax Act and Central Sales Tax Act, in TIN No.33505701913 and CST No.526608 respectively. Therefore, he can do business not only in Tamil Nadu, but in other states, like, Kerala and Karnataka. 3. The petitioner has further submitted that the Crusher or stone Dust is a waste product of the mining industry and it is used as an effective alternative to fill in sites, instead of sand, as it is much cheaper than sand. Therefore, on demand, he has regularly purchased the same and transported it within Tamil Nadu and to the neighbouring States, like, Kerala. At every time, while transporting the crusher dust from Tirunelveli to Kerala, the consignment had been checked by the Superintendent of Police, Tirunelveli and the Deputy Superintendent of Police, Tenkasi, Tirunelveli in the border check post and after getting clearance, transport it to the State of Kerala and that he is doing the said business regularly, for the past seven years. 4. According to the petitioner, there is no express prohibition in the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder, for transporting such crusher dust within the State or outside. There is no order, either from the State Government or the District Administration, preventing such transportation. There is no provision, enabling the petitioner to get prior permission from any authority or licence for transporting the same, as it is a waste product from the mining quarry and it is enough, a person, who is willing to take the crusher dust, has to pay the nominal charge as cost and can freely transport the same anywhere in the country. 5. The petitioner has further submitted that when he transported the crusher dust from Tamil Nadu to Kerala, through Senkottai, via., Puliyarai Check Post and while entering the State of Kerala at Kollam District, on 24.06.2011, his vehicles were stopped near the Check Post and prevented from entering into the State of Kerala. On enquiry, it was informed that there is an oral instruction from the District Administration, prohibiting transportation of crusher dust. 6. When similarly placed persons were allowed to transport the same, the petitioner has made representations, dated 15.06.2011 and 24.06.2011, to the respondents, narrating the above facts, requesting them to permit him to transport crusher dust, through Puliyarai Check Post to Kerala. In W.P.(MD)Nos.12738 to 12741 of 2009, this Court, by an order, dated 15.12.2009 has directed the fourth respondent to permit the petitioners therein to carry out their lawful business of transporting crushing dust to Kerala, through Puliyarai Check Post from the authorised mining quarries and crushing units, subject to the condition that the petitioners therein should produce necessary permits, the particulars, viz., from where they are removing and transporting the consignment, the place of destination, etc. Citing the above judgment, he has made a written representation on 15.06.2011, to the District Collector and the Superintendent of Police, in person and on 24.06.2011 to the Deputy Superintendent of Police, Tenkasi. He also sent a phonogram to the Deputy Superintendent of Police, on 29.06.2011. Since no orders were https://hcservices.ecourts.gov.in/hcservices/ 3 passed in the above representations, the petitioner has filed the present writ petition, for the relief as stated supra. 7. Per contra, placing reliance on G.O.Ms.No.19, Industries (MMD.1), dated 25.01.2011, by which, the Government have introduced the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, Mr.Pugalendhi, learned Special Government Pleader, submitted that rules have been framed under Sections 15(1)(1-A) and 23(C)(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957), for illegal mining, transportation and storage of minerals and the abovesaid rules is applicable to the petitioner, who claims to be a dealer in stone dust, which is nothing but a mineral. According to him, stone dust cannot be said to be a waste by-product of rough stones, but the same is also used for manufacture of hollow block bricks, and in such circumstances, for storage and transportation of crusher dust, necessary licence has to be obtained from the competent authority, under the new rules. 8. Learned Special Government Pleader further submitted that when the stone dust is also marketed and used as a building material, merely because, it is in powder form, it cannot be said that, it is not a mineral under the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011. According to him, it is a by-product of rough stone and therefore, the rules are applicable to the case of the petitioner. 9. Insofar as reliance to the unreported judgment in W.P.(MD) Nos.12738 to 12741 of 2009, dated 15.12.2009, learned Special Government Pleader submitted that the abovesaid judgment cannot be made applicable to the facts of this case, after the introduction of the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011. For the reasons stated supra, he prayed for dismissal of the writ petition. 10. By way of reply, the party-in-person, took this Court through certain provisions in the rules introduced in G.O.Ms.No.19, Industries (MMD.1), dated 25.01.2011 and further submitted that the crusher dust, is a by-product, when stone is crushed and that it is not covered under the definition of the Mineral. According to him, the Tamil Nadu Minor Mineral Concession Rules, deals only with mineral in solid form and it does not deal with the crushed dust, which is in powder form. 11. The petitioner has further submitted that the word, "mineral" means, "all minerals and minor minerals except sand and the definition of mineral, cannot be extended to a by-product. It is also his contention that the exclusion of by-product in the rules, has been done intentionally by the Legislature and in such circumstances, the Government cannot add any waste or by-product, as mineral and prohibit transportation from one place to another or from the place of stockyard. According to him, no registration is required for locating a stockyard nor any permission is required for transporting crush dust. It is his further contention that the new rules stated supra, are not applicable to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 4 Heard the learned counsel for the parties and perused the materials available on record. 12. The main contention of the writ petitioner is that though the stone or crusher dust is a by-product of rough stone and not occurring in three physical conditions, viz., solid, liquid and gaseous, the same cannot be brought within the ambit of the word “mineral” and in such circumstances, Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, cannot be made applicable to the petitioner, who is only transporting crushed dust, which is, according to him, not a mineral. It is his further contention that the new Rules, cannot be applicable to dust, which is according to him, is only a waste product, in the process of crushing and that, there is no need to register under Rule 4 of the abovesaid Rules, 2011. It is also his contention that operating stockyard and imposition of a condition under the rules, can be made only with reference to minerals, purchased from the quarry site and no prohibition can be imposed in respect of a by-product. 13. The definition of “minerals” as per Section 3(a) of the Mines and Minerals (Development and Regulation) Act, include, all minerals, except mineral oils and “minor mineral” means, “building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral.” Though the petitioner has contended that mineral can only be in three physical forms, viz., solid, liquid and gaseous, the same cannot be countenanced for the reason that the definitions of "mineral" and "minor mineral", do not include only gas and petroleum. Even as per the averments and the submissions of the petitioner, crusher dust is a by- product of rough stones. 14. If jelly stones in different sizes, are by-products of rough stones, broken into different sizes, falling within the definition of minor minerals, as per Section 3(e) of the Mines and Minerals (Development and Regulation) Act, the crusher dust is also a by-product. Rule 12 of the Tamil Nadu Minor Mineral Concession Rules, permits the public to quarry free of charge for bona fide domestic or agricultural purposes, sand, earth or silt from the beds of tanks under the Control of the Public Works Department or Revenue Department, which are notified by the Collector under the above Rule, without obtaining permits for quarrying, provided that the dwelling place or agricultural land of the person concerned and the quarrying place shall be in the same revenue village or in the adjoining revenue village. Quarrying on removal of minerals for other than bona fide domestic or agricultural purposes shall be subject to the previous permission being obtained from the District Collector concerned and to the payment of seigniorage fee for the quantity of the mineral sought to be removed at the rates specified from time to time, in Appendix-II to the said Rules, removal of mineral from the lands shall be subject to the restrictions contained in sub-Rule (2) of Rule 12 of the abovesaid Rules. 15. Thus, it is evident that even if Public are allowed to quarry sand or silt or earth from the tank beds, under the control of the Public Works Department or Revenue Department, notified by the Collector, the https://hcservices.ecourts.gov.in/hcservices/ 5 purpose should be only for bona fide domestic or agricultural purpose and for all other purposes, prior permission has to be obtained from the District Collector concerned, on payment of seigniorage fee. Inference from the above is that quarrying and transportation of mineral for commercial purposes, cannot be done without prior permission and it is regulated under the provisions of the Tamil Nadu Minor Mineral Concession Rules. 16. Though the petitioner has contended that the crusher dust is only a by-product and not a mineral, it is still in the solid form only, and the contention that it is used for manufacturing hollow block stones or as a building material, is not disputed. "Mineral Mineral" means, building stones, which can be in the shape of a brick, jelly stones of different sizes or can be even dust, used for manufacturing of hollow block bricks, or used for effective alternative, to fill-in sites, instead of sand, as it is much cheaper than the sand. The definition of “minor mineral” also includes clay, ordinary sand other than sand used for the prescribed purposes. 17. In Banarsi Dass Chadha v. Delhi Administration reported in AIR 1978 SC 1587 = 1978 (4) SCC 11, the Supreme Court held that the word ”mineral” is not a term of art. It is a word of common parlance, capable of a multiplicity of meanings, depending upon the context. It has further held that “Minor Minerals include 'ordinary clay' and 'ordinary sand' also and it is not clear why earch used for bricks should not be comprehended within the meaning of 'any of mineral'. The said judgment can be applied to the facts of this case also, as to why crusher dust cannot be brought within the definition of mineral, when it is used for manufacturing hallow bricks, and when crusher dust is marketed. 18. In Chandeswar Prasad v. Sub-Divisional L.R. Officer reported in AIR 1986 Cal 1, the Calcutta High Court, while considering the definitions “mineral” and “minor mineral”, has held that, 'brick earth' like ordinary clay or silt or sand, falls within the genus 'mineral' and it has, therefore, been validly notified under the Act, as minor mineral. The Court held that in including the said items in the Act or in the notification thereunder, the Parliament and the Central Government have not gone beyond the scope of Entry 54, List I of the Constitution of India. 19. Though crusher dust or stone dust, is not specifically included in the definition 'Minor Minerals' its genus is certainly from rough stone and when it is used for manufacturing bricks, sold for value, it cannot be said that it would not fall within the definition of minor mineral. 20. In D.K.Trivedi and Sons v. State of Gujarat reported in AIR 1986 SC 1323, the Apex Court held that the word “minerals” wherever used in Act 67 of 1957, would include all minerals except mineral oil, unless the context otherwise requires, as per the meaning assigned under Section 3(a). Wherever necessary, the Act has drawn distinction between minor minerals and minerals other than minor minerals. 21. In the light of the above decisions, this Court is not inclined to accept the contention of the petitioner that crusher dust or stone https://hcservices.ecourts.gov.in/hcservices/ 6 dust is not a mineral and therefore, no registration is required under Rule 4 of the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, which is extracted hereunder: “4. Grant of Registration and its renewal:- (1) Every Mineral Dealer and any person desirous of being registered as a Mineral Dealers under these Rules shall apply to the District Collector concerned through the Deputy Director in triplicate in Form 'A' along with the application fee of Rs.5,000/- (Rupees five thousand only) drawn in favour of the District Collector of the concerned district by designation. Separate application along with the said fee shall be submitted for each stockyard. (2) On receipt of the application under sub-rule (1), the Deputy Director shall acknowledge the receipt immediately in Form 'B' and the acknowledgement shall be sent to the applicant.” 22. As per Rule 2(xv) of the Rules, 2011, a “Mineral Dealer” means any person who carries on the business of buying, selling, storing, supplying, transporting, distributing or delivering for sale of mineral or its products and includes. When the abovesaid rule speaks of various activities, such as, by selling of minerals and its products, the petitioner, who claims to own a business establishment, in the name and style of "Pradeep Visu Agency", running business in the commodities, like, Blue Metal, Jelly Dust, Sand, Bricks, Hollow Blocks, Metal Chips and Casuarinas Poles, cannot be said that he will not come under the definition of “mineral dealer”, who is bound to register himself under Section 4 of the abovesaid Rules, 2011. 23. Section 15 deals with the Power of the State Governments to make rules in respect of minor minerals and Sub-Sections (1) and (1-A) of the said Section reads as follows: “15. Power of the State Governments to make rules in respect of minor minerals:- (1) The State Government may, by notification in the Official Gazette, may rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. (1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineal concessions may be made and the fees to be paid therefor:- (b) the time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent; (c) the matters which may be considered where applications in respect of the same land are received within the same day. (d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed; (e) the procedure for obtaining quarry leases, mining leases or other mineral concessions; (f) the facilities to be afforded by holders of quarry https://hcservices.ecourts.gov.in/hcservices/ 7 leases, mining leases or other mineral concessions to persons deputed by the Government for the purpose of undertaking research or training in matters relating to mining operations; (g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable; (h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any party is prejudicially affected by reason of any prospecting or mining operations. (i) the manner in which rehabilitation of flora and other vegetation such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease; (j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred; (k) the construction, maintenance and the use of roads, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession; (l) the form of registers to be maintained under this Act; (m) the reports and statements to be submitted by holders of quarry or mining leases or other mineal concessions and the authority to which such reports and statements shall be submitted; (n) the person within which and the manner in which and the authority to which applications for revision of any other passed by any authority under these rules may be made, the fees to be paid therefor, and the powers of the revisional authority; and (o) any another matter which is to be, or may be, prescribed." 24. Section 23(1) of the Mines and Minerals (Development and Regulation) Act empowers the Statement to make rules for preventing illegal mining, transportation and storage of minerals and the same is extracted hereunder: “(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.” 25. The definitions given in Section 2 of the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, are extracted hereunder: “(ii) “Authorised Officer” means the District Collector of the district concerned or such other officer as may be authorised by the Government. https://hcservices.ecourts.gov.in/hcservices/ 8 (xi) “Rules” means all Rules framed under the Mines and Minerals (Development and Regulation) Act, 1957. (xiii) “Minerals” means all minerals and minor minerals except sand. (xvi) “Stockyard” means a place where the minerals are stored or stocked outside the lease area. (xvii) “Transport permit” means a permit issued by the permit issuing officer. (xviii) “Transit pass” means a pass issued by the concerned Deputy Director for lawful transportation of any mineral by a carrier from the place of stockyard or from the lease area by the registree under the Rules. (xix) all other words and expressions used in these Rules but not defined shall have the meaning respectively assigned to them in the Act or Rules made thereunder.” 26. Section 3 of the abovesaid Rules deals with prohibition of transportation of mineral and the said rule is extracted hereunder: “(1) No person shall transport or cause to be transported any mineral by any carrier from the place of raising or from the place of stockyard or from one place to another without having a valid transit pass. (2) No person other than the mineral dealer shall store or cause to be stored any mineral at any place for purposes of sale or consumption. (3) No mineral dealer shall store any mineral other than the place specified in the registration certificate granted under these Rules: Provided that no person purchasing and transporting minerals for use or consumption by himself and such use or consumption does not involve any commercial activity and any holder of a mining lease or a quarry lease in respect of the minerals for which he holds a lease, shall not be required to register himself as a dealer.” 27. Section 6 speaks about transport permit and transit pass and it reads as follows: “(1) No person shall transport or otherwise remove or carry away any mineral from any place without obtaining a transit pass from the Deputy Director. Person desiring such passes should file an application before the Deputy Director in Form 'F' duly specifying all the particulars prescribed therein. (2) The application shall be accompanied by a copy of the permit showing payment of royalty/seigniorage on such mineral or other adequate proof of such payment. (3) On receipt of an application under sub-rule (1), the Deputy Director may grant transit pass in Form 'F' for such period and subject to such terms and conditions as may be imposed by him or may refuse to grant such transit pass for the reasons to be recorded in writing and communicated to the applicant. (4) Any person who transports the minerals and who is https://hcservices.ecourts.gov.in/hcservices/ 9 required to carry transit shall produce pass on demand to the authorised officer or any officer or authority who has been empowered under sub-section (4), Section 21 of the Act.” 28. The conditions for grant of registration certificate in Form 'D' are set out in Rule 7 and the same is extracted hereunder: “(i) All traders in minerals should be registered as dealers. However, in the case of Mineral Dealers who deal exclusively with imported minerals of a variety not available in Tamil Nadu, no inspection of the Units outside the State from which the minerals are secured will be done. The mineral traders however should file quarterly statement of their minerals imported into the State and produce proof of payment of any entry tax or other tax leviable by the State of Tamil Nadu whenever called upon to do so. (ii) The grantee of registration shall maintain the details of minerals purchased and stocked and details of mineral transported from the stockyard and the balance of mineral available in the stockyard in Form 'E'. If the grantee of registration having more than one stockyard, each stockyard shall be registered separately and Form 'E' shall be maintained separately for each stockyard. The stockyards are liable for verification at any time by the authority or authorised officer. (iii) The grantee of registration shall allow any authorised officer at any time to inspect the stockyard, factories to verify the stock of ores or minerals and take sample of the abstract from the