IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-11-2006 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE J.A.K. SAMPATH KUMAR W.P.NOs.3782,3783,2696,3300,3847,3748,3749,3997, 4196, 4197, 4198, 4375, 4620, 4623, 4624, 4630, 4651, 4866, 4875,4892 to 4896,4905,4910,4912, 4919,5014,5058,5062 of 1998 and 2185 of 1999 and WMP.NOs.5692,5693,4012,4926,5647,5648,5792,6040, 6381 to 6384,6669,7071,7076,7077,7086,7109,7522, 7539,7600 to 7604,7614,7622,7625,7633,7783,7852, 7856 of 1998 and 3095 of 1999 Kamarajapuram Labour Contract Co-operative Society Ltd., rep. by its President, C. Dasan, Kamarajapuram, Anakaputhur, Madras 600 070. .. Petitioner in WP.3782/98 S.K. Dharmalingam .. Petitioner in W.P.3783/98 Vs. 1. State of Tamil Nadu, rep. by the Secretary to Govt., Industries Department, Fort St. George, Madras 600 009. 2. The District Collector, Chengalpattu District, Chengalpattu. .. Respondents in WP.3782/98 & W.P.3783/98 Erode District Jelly Crusher and Quarry Oweners Assoication rep by its Secretary Mr.D. Govindasamy .. Petitioner in W.P.2696/98 https://hcservices.ecourts.gov.in/hcservices/ Mr.K.N. Rajalingam S/o. Sri Natesan .. Petitioner in S.P.3300/98 The Selam Distict Blue Metal Manufactures Assoication (Regd. No.132/89) rep by its Treasurer Mr.C. Kaliappan .. Petitioner in W.P.3847/98 P. Arumugam S/o. Sri. Ponnusamy .. PEtitioner in W.P.3748/98 M. Saminathan S/o. Sri Manickam .. Petitioner in W.P.3749/98 Thiruvannamalai District Machine Jelly Producers Assoication rep by its President Sri P. Krishnamurthy .. Petitioner in W.P.3997/98 R. Rajendran, S/o. Rangasamy Naidu .. Petitioner in W.P.4196/98 M.P. Srinivasan, S/o. Ponnusamy .. Petitioner in w.P.4197/98 M.P. Sathiyamurthy S/o. Ponnusamy Nadar .. Petitionerin W.P.4198/98 C. Manickam S/o. Sri Chinnaih .. Petitioner in W.P.4375/98 T. Ganesan S/o. Sri Thimmaiah Chetty .. Petitioner in W.P.4620/98 R. Gopalakrishnan S/o. S. Ramasamy .. Petitioner in W.P.4623/98 Karur District Half Body Lorry Tractor Jelly Businessmen Crusher and Quarry Owners Assoication, rep by its President K. Subramanian .. Petitioner in W.P.4624/98 V. Panneerselvam S/o. Sri Vellaisamy Devar .. Petitioner in W.P.4630/98 https://hcservices.ecourts.gov.in/hcservices/ Tiruvnelveli Tuticorin District Minor Mineral Lease Holders Sangham (Regd.No.37/98) rep by its Secretary .. Petitioner in W.P.4651/98 1.R. Sonai 2.R. Murugesan 3.M. Singaraj 4.S. Palanivel 5.M. Manikandan 6.S. Samuthram 7.P. Vedi Ramsamy 8.T. Bhuvaneswaran 9.M. Chinna Raja 10.T.J. Thereasa Joseph 11.T. Soundarajan 12.M. Ramachandran 13.M.K. Mahalingam 14.S.R. Kuppusamy 15.G. Sampath 16.M. Manikanndan 17.K. Pandi 18.P.T.V. Pitchai 19.P.K.M. Rajangam 20.K.P. Maduraisamy 21.M.P. Dharmapandian 22.M. Tamilselvi 23.M. Senthil kumar 24.A. Tamilarasu 25.N. Deivendran 26.V. Andammal 27.V. Baulraj 28.K.N. Soolairajan ... Petitioner in W.P.4866/98 K. Sundararajan S/o. Kondaya Naidu ... Petitioner in W.P.4875/98 S. Santhiraj S/o. Srinivasan ... Petitioner in W.P.4892/98 K. Muralidharan S/o. Ramadoss Naicker ... Petitioner in W.P.4893/98 D.U. Chandra Prakash S/o. S.D. Ugamchand ... Petitioner in W.P.4894/98 C. Abdul Khader S/o. M.A. Chan Basha ... Petitioner in W.P.4895/98 https://hcservices.ecourts.gov.in/hcservices/ K. Nathamal S/o. G. Kanyalal ... Petitioner in W.P.4896/98 K.S. Sundaram S/o. Durairaj ... Petitioner in W.P.4905/98 K. Dhanasekaran S/o. C. Krishnan ... Petitioner in W.P.4910/98 M.A. Chan Basha S/o. Abdul Basha ... Petitioner in W.P.4912/98 S.D. Premchand S/o. Daramchand ... Petitioner in W.P.4919/98 G. Manickam S/o. Gurusamy ... Petitioner in W.P.5014/98 B.A. Kahar Basha S/o. B. Abdulla ... Petitioner in W.P.5058/98 B. Kalivardha Reddy S/o. Bangaru Reddy ... Petitioner in W.P.5062/98 S. Prema W/o. Sekar ... Petitioner in W.P.2185/99 VS 1. The State of Tamilnadu rep by the Secretary to Governemnt Industries Department Fort st. George, Chennai-9. ... First Respondent in all Wps The District Collector, Erode District, Erode. ... 2nd Respondent in W.P.2696/98 The District Collector Tiruchi District Tiruchirappalli ...2nd Respondents in W.P.3300/98 and W.P.4375/98 The District Collector Salem District at Salem ... 2nd Respondent in W.P.3847/98 https://hcservices.ecourts.gov.in/hcservices/ The Dsitrict Colector Perambalur District, Perambalur ... 2nd Respondent in W.P.3748/98 & 3749/98 The District Collector Thiruvannamalai Dsitrict, Thiruvannamalai ... 2nd Respondent in W.P.3997/98 The Dsitrict Collector Vellore District, Vellore. ... 2nd Respondent in W.P.4196, 4197 & 4198/98 The District Collector Dharmapuri District, Dharmapuri ... 2nd Respondent in W.P.4620/98 & W.P.4623/98 The District Colector, Karur Dsitrict, Karur. ... 2nd Respondent in W.P.4624/98 The District Collector Thiruvallur District, Thiruvallur ... 2nd Respondent in W.P.4630/98 & W.P.5058/98 The District Collector Tirunelveli District, Tirunelveli District. ... 2nd Respondent in W.P.4651/98 The District Collector Tuticorin District, Tuticorin .... 3rd Respondent in W.P.4651/98 The District Colector Madurai District. Madurai ... 2nd Respondent in W.P.4866/98 The District Collector Kanchipuram ... 2nd Respondent in W.Ps.4875, 4892, 4893, 4894, 4895, 4896, 4905,4910, 4912 and 4919/98 The Dsitrict Collector Coimbatore District, Coimbatore. ... 2nd Respondent in W.P.5014/98 https://hcservices.ecourts.gov.in/hcservices/ The District Collector Villupuram District Villupuram. ... 2nd Respondent in W.P.5062/98 The Revenue Disvisional Officer, Ranipet, Vellore District. ... 2nd Respondent in W.P.2185/99 W.P.Nos.3782, 3783,2696,3300,3847,3748,3749,3997, 4196, 4197, 4198, 4375, 4620, 4623, 4624, 4630, 4651, 4866, 5014,5058,5062 of 1998 and 2185 of 1999. Petition filed under Article 226 of the Constitution of India the issuance of writ of declaration to declare the first Respondent's Orders in G.O.Ms.No.3, 4 and 5, Industries (MMC1), dated 2.1.1998 amending the Tamil Nadu Minor Mineral Concession Rules, 1959 as ultra vires, illegal, null and void so far as the petitioner is concerned respectively. W.P.Nos.4875, 4892 to 4896, 4905,4910,4912 and 4919 of 1998. Petition filed under Article 226 of the Constitution of India the issuance of writ of declaration to declare the Tamilnadu Mineral Concession Rules 1959 as amended by the first Respondent by G.O.Ms.No.3, 4 and 5, Industries (MMC1), dated 2.1.1998 as ultra vires, and unconstitutional in so far this petitioners are csoncerned respectively. For Petitioner : Mr.M.K. Ramakrishna Reddy For Respondents : Mr.R. Viduthalai, Advocate General for Mr.R. Thirugnanam COMMON JUDGMENT P.K. MISRA, J In this batch of writ petitions, common questions of law and fact are involved and the relief claimed in the writ petitions are being similar, all the matters have been heard together and shall be disposed by the present common judgment. 2. The petitioners have prayed for a declaration that the orders passed in G.O.Ms.Nos.3, 4 and 5, Industries (MMC1) dated 2.1.1998 amending the Tamil Nadu Minor Mineral Concession Rules, 1959 as illegal, null and void and for quashing the same. https://hcservices.ecourts.gov.in/hcservices/ 3. The brief background facts are as follows :- The Mines and Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957), hereinafter referred to as “the Act” is a Central Act dealing with the subject “Minerals” which comes within Item No.54 of the Union List. It is an Act to provide for the development and regulation of mines and minerals under the control of the Union of India. Section 2 of such Act contains the declaration as to the expediency of Union control of the regulation of mines and development of minerals to the extent provided in the Act. Under Section 3(a), “minerals” includes all minerals except mineral oils. Under Section 3(e) “minor minerals” 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. 4. Section 15 empowers the State Government to make rules in respect of minor minerals and is extracted hereunder :- “15. Power of State Governments to make rules in respect of minor minerals- (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. (1A) 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 mineral 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 such 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 shurbs 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 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 mineral concessions and the authority to which such reports and statements shall be submitted; (n) the period within which and the manner in which and the authority to which applications for revision of any order 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 other matter which is to be, or may be prescribed. (2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act shall continue in force. (3) The holder of a mining lease or any other mineral concession granted under any rule made under sub- section (1) shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in https://hcservices.ecourts.gov.in/hcservices/ the rules framed by the State Government in respect of minor minerals; Provided that the State Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.” 5. Section 14 provides that the provisions of Sections 5 to 13 shall not apply to quarry leases, mining lease or other mineral concessions in respect of minor minerals. Section 18 is as follows :- “18. Mineral development.- (1) It shall be the duty of the Central Government to take all such steps as may be necessary for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations and for such purposes the Central Government may, by notification in the Official Gazette, make such rules as it thinks fit. (2) 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 opening of new mines and the regulation of mining operations in any area; (b) the regulation of the excavation or collection of minerals from any mine; (c) the measures to be taken by owners of mines for the purpose of benefication of ores, including the provision of suitable contrivances for such purpose; (d) the development of mineral resources in any area; (e) the notification of all new borings and shaft sinkings and the preservation of bore-hole records, and specimens of cores of all new bore-holes. (f) the regulation of the arrangements for the storage of minerals and the stocks thereof that may be kept by any person; (g) the submission of samples of minerals from any mine by the owner thereof and the manner in which and the authority to which such samples shall be submitted; and the taking of samples of any minerals from any mine by the State Government or any other authority specified by it in that behalf; (h) the submission by owners of mines of such special or periodical returns and reports as may be specified and the form in which and the authority to which such returns and reports shall be submitted; (i) the regulation of prospecting operations; https://hcservices.ecourts.gov.in/hcservices/ (j) the employment of qualified geologists or mining engineers to supervise prospecting or mining operations; (k) the disposal or discharge of waste slime or tailings arising from any mining or metallurgical operations carried out in a mine; (l) the manner in which and the authority by which directions may be issued to the owners of any mine to do or refrain from doing certain things in the interest of conservation or systematic development of minerals or for the protection of environment by preventing or controlling pollution which may be caused by prospecting or mining operations; (m) the maintenance and submission of such plans, registers or records as may be specified by the Government; (n) the submission of records or reports by persons carrying on prospecting or mining operations regarding any research in mining or geology carried out by them; (o) the facilities to be afforded by person carrying out prospecting or mining operations to persons authorised by the Central Government for the purpose of undertaking research or training in matters relating to mining or geology. (p) the procedure for and the manner of imposition of fines for the contravention of any of the rules framed under this section and the authority who may impose such fines; and (q) the authority to which, the period within which, the form and the manner in which applications for revision of any order passed by any authority under this Act and the rules made thereunder may be made, the fee to be paid and the documents which should accompany such applications. (3) All rules made under this section shall be binding on the Government.” 6. Section 26, which occurs in the Chapter under the heading “Miscellaneous” is as follows :- “26. Delegation of powers.-(1) The Central Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act may,in relation to such matters and subject to such conditions, if any, as may be specified in the notification be exercisable also by- (a) such officer or authority subordinate to the Central Government; or (b) such State Government or such officer or authority subordinate to a State Government; as may be specified in the notification. https://hcservices.ecourts.gov.in/hcservices/ (2) The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act may, in relation to such matters and subject to such conditions, if any, as may be specified in the notification, be exercisable also by such officer or authority subordinate to the State Government as may be specified in the notification. (3) Any rules made by the Central Government under this Act may confer powers and impose duties or authorise the conferring of powers and imposition of duties upon any State Government or any officer or authority subordinate thereto.” 7. The Tamil Nadu Minor Mineral Concession Rules, 1959 (hereinafter referred to as “the Rules”) was made by the State in exercise of powers conferred under Section 15 of the Act. Under Rule 3, an application for grant of a quarrying permit shall be made in the prescribed Form to the District Collector. By virtue of Rule 3(2), the District Collector may grant a quarrying permit for any minor mineral other than the minor minerals covered under Rules 8-A and 8-C. [Rule 8-A relates to lease of quarries to private persons in respect of Granite and Rule 8-C relates to quarrying of Granite by the State Government and granting of lease to a State Government Company or Corporation. In the present case, we are not at all concerned with the lease regarding granite either under Rule 8-A or 8-C] 8. Rule 8 provides for leasing of lands for quarrying minor minerals other than the mineral covered under Rules 8A and 8C. It prescribes a detailed procedure relating to leasing of lands for quarrying minor minerals other than the mineral covered under Rules 8A and 8C. Section V contains Miscellaneous provisions. 9. Since various amendments to Rule 36(5) are in question, it would be appropriate to quote in extenso the relevant provisions. “36(5)(a) The quarrying permit holder or the lessee or his tenant or lessee, etc., shall keep correct accounts showing the quantity and other particulars of all minerals obtained and despatched from the quarry. He shall also allow any officer authorised by the State Government, Director of Geology and Mining, Chief Conservator of Forests, the Collector or the District Forest Officer, as the case may be, to examine such accounts and furnish him with such informations and returns as may be specified by them. (aa) Joint Director (Geology and Mining) Deputy https://hcservices.ecourts.gov.in/hcservices/ Director (Geology and Mining) Assistant Director (Geology and Mining), Assistant Geologist, Special Tahsildar (Mines), Special Deputy Tahsildar (Mines) and Special Revenue Inspector (Mines) in the district offices of the Department of Geology and Mining and Presidents of Village Panchayats, Executive Officers of Town Panchayats or Townships and the commissioners of Municipalities or Corporations shall exercise the powers and discharge the duties as may be required and as the circumstances of the cases warrant in respect of the provisions of clause (a) and within their respective jurisdiction.; Provided that the said powers and duties exercisable and dischargeable by the local body authorities specified above shall be exercisable and dischargeable only in respect of minor minerals namely building and road turf and ordinary clay gravel ordinary sand earth and truf and ordinary clay including silt brick and tile clay and within their jurisdiction relating to all lands excepting the reserved forest lands and ponds reserved under the Tamil Nadu Forest Act,1882 (Tamil Nadu Act V of 1882). (b) (omitted as not necessary) (bb) In respect of minor minerals namely building and road construction stones including gravel ordinary sand earth and truf and ordinary clay including silt, brick and tile clay occurring in any land except those lands constituted as reserved forests under section 16 of the Tamil Nadu Forests Act, 1882 (Tamil Nadu Act V of 1882) an reserved lands notified under Section 26 of the said Act V of 1882, the Presidents of Village Panchayats, Executive Officers of Town Panchayatsd and Townships and Commissioners of Municipalities and Corporations shall collect lease amount, seignorage fee or deed rent or area assessment or any other payment as the case may be in relation to the lessees or permit holders, sign and issue transport permits and despatch slips to the quarrying permit holders and lessees and collect penalty amount and compounding fee from the persons liable to pay the penalty or compounding fee as the case may be. Provided that in the case of village panchayats the transport permit and despatch slips shall be jointly signed by the village panchayat, President and Vice- President. In the absence of Vice-President any member authorised by the panchayat for this purpose shall jointly sign the transport permits and despatch slips in the place of Vice-President. Provided further that the issue and use of transport permits and despatch slips for transportation of any minor mineral shall be subject to the condition stipulated in these rules and instructions of the State https://hcservices.ecourts.gov.in/hcservices/ Government, Director of Geology and Mining and or the District Collector or the District Forests Officer issued from time to time. (c) The quarrying permit holder or the lessee shall carry out quarrying operations in a skilful, scientific and systematic manner keeping in view proper safety of the labour, structure and the public and public works located in that vicinity of the quarrying area and in a manner to preserve the environment and ecology of the area. (d) (omitted as not necessary) (dd) Joint Director (Geology and Mining) Deputy Director (Geology and Mining) Assistant Director (Geology and Mining), Assistant Geologist, Special Tahsildar (Mines), Special Deputy Tahsildar (Mines) and Special Revenue Inspector (Mines) in the district offices of the Department of Geology and Mining and Presidents of Village Panchayats, Executive Officers of Town Panchayats or Townships and the commissioners of Municipalities or Corporations shall exercise the powers and discharge the duties as may be required and as the circumstances of the cases warrant in respect of the provisions of clause (d) and within their respective jurisdiction.: Provided that the said powers and duties exercisable and dischargeable by the local body authorities specified above shall be exercisable and dischargeable only in respect of minor minerals namely building and road construction stones including gravel, ordinary sand, earth and truf and ordinary clay including silt, brick and tile clay and within their jurisdiction relating to all lands excepting the reserved forest lands and lands reserved under the Tamil Nadu Forests Act, 1882 (Tamil Nadu Act V of 1882). (e) to (h) (omitted as not necessary).” 10. The provisions contained in Section 36(5)(aa), (bb) and (dd),including the provisos have been inserted vide G.O.Ms.No.3, Industries (MMC1), dated 2.1.1998 with effect from 1.4.1998. The petitioners have also challenged the validity of G.O.Ms.Nos.4 & 5 of the said date. Under G.O.Ms.No.4 dated 2.1.1998, provision has been made in exercise of powers conferred under Section 21 of the Act read with the Government of India, Ministry of Steel and Mines, Department of Mines, Notification dated 6.2.1979. The Government has empowered the Joint Directors in the Department of Geology and Mining, the Presidents of Village Panchayats, the Executive Officers of Town Panchayats, Townships and the Commissioners of Municipalities and Corporations to exercise the powers under Section 21(4) in respect of minor minerals, namely, building and road construction stones including gravel, ordinary sand, earth and turf and ordinary clay including https://hcservices.ecourts.gov.in/hcservices/ silt, brick and tile clay. In the very same notification, in exercise of powers conferred under Section 26(2) of the Act, the power exercised by the State Government under Section 21(5) shall be exercisable also by the Revenue Divisional Officers in respect of minor minerals, namely, building and road construction stones including gravel, ordinary sand, earth and turf and ordinary clay including silt, brick and tile clay. 11. Under G.O.Ms.No.5 dated 21.1.1998, the State Government issued instructions in respect of common use minor minerals by Village Panchayats, Town Panchayats, Townships, Municipalities and Corporations relating to collection of seigniorage fee, etc. 12. The main challenge of the petitioner is on the ground that the amendments made to the Minor Mineral Concession Rules, 1959 under G.O.Ms.No.3 are beyond the rule making power of the State Government and are illegal and invalid because such rules are contrary to the provisions contained in Section 26(2) of the Act. More particularly it has been submitted that the provision in the Rules empowering the Panchayat Presidents and Municipal Commissioners to do certain acts are contrary to Section 26(2) of the Act. The contention of the petitioners is to the effect that such Panchayat Presidents and Municipal Commissioners are not officers/authorities subordinate to the State and, therefore, no such power could have been delegated to them as according to Section 26(2) delegation can be made only in favour of officer/authority subordinate to the State. 13. After the writ petitions were entertained, a learned single Judge of this Court had passed an order of stay so far as the amended Rules or the notifications authorising the Panchayat Presidents to do certain acts. Other part of the