K.Kalyanasundaram, J. - (1.) This writ appeal is directed against the order passed in W.P.(MD).No.20022 of 2017 dated 29.11.2017 whereby, this Court held that the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder would not apply to the imported sand and also issued directions to close the sand quarry, etc.
(2.) The brief facts necessary for disposal of the appeal would run thus:- (i) The 1st respondent herein ( hereinafter referred to as the writ petitioner) has preferred a writ petition contending that the 1st respondent / writ petitioner is a Private Limited Company provided with Import and Export Code (IEC) bearing No.0412018128 issued by the Ministry of Commerce and industries, the Government of India, in terms of the provisions of Foreign Trade (Development and Regulation) Act. Since then, the writ petitioner was doing the business. (ii) In India, for the past 10 years, there is rapid development of infrastructure and the "natural sand" is one of the major and essential material. Already, the natural sand was exploited from the rivers to its maximum extend and consequently, the ecology is in peril. The deposit of natural sand has come down rapidly in the Indian rivers due to maximum exploitation. While its demands were very high and the price of the natural sand has incidentally increased and in order to meet the high demand, and control the price rise of the natural sand, the Union of India took a policy decision to permit to import of "natural sand" from foreign countries. In this regard, a notification dated 07.11.2014 was published by the Government of India permitting the import of sand, subject to the only condition of submitting quarantine in terms of the Plant Quarantine (Regulation of Import into India) Order, 2003. (iii) It is the further case of the writ petitioner that after the liberalisation of the import policy, the petitioner undertook an extensive research concerning quality of "natural sand" in foreign countries to know that the same is fit for construction purpose. They also conducted chemical analysis test and thereafter entered into an agreement of sale with M/s.All Works Trading Private Limited of Malaysia, on 09.09.2017, to supply river sand of one lakh MT from Sungai Pahang River, Kuantan City, Malaysia. After obtaining certificate of Plant Quarantine from Government of Malaysia, the first shipment of sand of 55,443.84 MT reached Tuticorin Port in India on 14.10.2017 through Indian waters by obtaining necessary permission from the Director General of Lighthouses and Lightships, Ministry of Shipping. (iv) It is the further case of the writ petitioner that they had paid a sum of Rs.1,80,00,000/- (Rupees one crore and eighty lakhs only) towards Port Wharfage Charges, Port on-board levy charges, Port Royalty Charges, Port Levy for Shore Handling Charges, Port Royalty Charges for Shore, Labour Charges, Customs Bill Filing Charges, Transport Charges, Yard Plot Rent, etc., through the clearing agent viz., M/s.Janaki Traders. The writ petitioner has also paid to the tune of Rs.38,39,347/- (Rupees thirty eight lakhs thirty nine thousand and three and forty seven only) towards Goods and Service Tax (GST). (v) After completing the formalities with the Customs Department and the clearance from the Plant Quarantine authorities, the imported river sand was permitted to be taken out of the Port. The writ petitioner was selling the imported river sand directly to the individual customer by proper invoice customs bill of entry and by hiring vehicles. When the river sand was in transit, the Inspector of Police, Aralvoimozhi Police Station, Kanyakumari District had seized the lorries along with imported sand and handed over the same to the Revenue Divisional Officer, Kanyakumari District, who in turn handed over the said lorries to the Assistant Director of Geology and Mines, Kanyakumari District. The Inspector of Police has also registered a case in Crime No.450 of 2017 under Mines and Minerals Act, 1957. It is further stated that the 1st appellant / the District Collector Thoothukudi District had instructed the V.O.Chidambaranar Port Trust, Tuticorin, not to allow any private person / Government Firms or any other agency to transport the imported sand from the Port Yard. (vi) On the basis of the instructions, the Port Trust has issued a communication dated 24.10.2017 to the clearing agent, stating that the Port will not permit to transport away the sand. Contending that the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter called as MMDR Act) and Tamil Nadu Minor Mineral Concession Rules, 1959 (hereinafter called as MMCR Act) have no application to the imported sand and the appellants have no authority to prevent this imported sand being sold to their customers, and there is an interference with the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, the writ petition came to be filed for issuance of Writ of Mandamus forbearing the respondents from insisting for licence, permit, transport slip, etc., under the Tamil Nadu Minor Mineral Concession Rules, 1959 for the transportation of imported sand. (vii) In the counter affidavit, the averments and allegations of the writ petitioner have been denied and the appellants further contended that the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealer Rules 2011 (herein after called as Rules 2011) were framed under the enabling provisions of Section 23(c) of the MMDR Act to prevent illegal mining, transportation and storage of minerals. The definition of "minerals" in sub Rule (xiii) of Rule 2 includes all minerals and minor minerals except sand. The term "except sand" denotes only the river sand and exclusion of other silica sand and other sand, which is also notified by the Government of India in the Gazette notification, dated 10.02.2015. The term "mineral dealer" has been defined under Sub-rule (xv) of Rule 2, which states that any person, who carries on the business of buying, selling, storing, supplying, transporting, distribution or delivering for sale of mineral or its product and includes. There is a prohibition under Rule 3 of Rules 2011 and the sub Rule (1) of Rule 7 deals with the registration of imported minerals, wherein exemption has been given for inspection, if the imported minerals of the are variety not available in India. For the minerals available in India, all the Rules applied to the regional mineral dealer are also applicable to the imported mineral dealer. Rule 8 of the Rules 2011 deals with the seizure and confiscation of minerals, which was not adhered to under the Act and Rules. (viii) It is further stated in the counter affidavit, that as per Section 4 (1A) of MMDR Act, no person shall transport or store any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder. Section 21 Sub-clause (4-A) of MMDR Act, authorizes confiscation of any material, tool, equipment, vehicle, and other things seized under sub-section (4) by order of the Court. Further, Section 15 of the MMRD Act empowers the State Government to make Rules in respect of the mines and minerals and exercise of power. (ix) The sum and substance of the counter is that the Rules 2011 mandate the registration of a dealer, obtaining required permission for transportation of the imported sand and also submission of the relevant records connected thereto. By such submission, the respondent in the writ petition sought dismissal of the writ petitioner's claim.
(3.) The Writ Court, after considering the rival submissions, allowed the writ petition and issued the following directions:- "(a) The State shall stop all sand mining/quarrying activities in the State of the Tamil Nadu within six months from today and shall not open any new sand quarries/mines in future; (b) The quarries of granites and other minerals, except, jelly, have to be periodically closed to maintain ecological balance; (c) The respondents shall forthwith issue appropriate directions to the authorities concerned enabling the importers to transport and sell the the imported river sand with appropriate directions to the importers to produce all the import related documents and maintain proper records reflecting the quantity imported, sold, stock in hand and other necessary particulars before the Mines and Commercial Taxes Departments respectively, to check evasion of taxes; (d) The State shall depute a team with experts from the Geological Department to identify, process and import the sands and minerals from countries which permit export and display them for public and the 15th respondent shall cause to effect a publication as to the countries which permit export of sand and the procedures thereof to be complied with; (e) The State shall also take a decision to import river sand by the State owned Corporation itself to meet out the short-supply of sand within the State, if there is no other legal impediments; (f) The District Collectors and the Superintendents of Police of all the Districts concerned, in consultation with the officials of the Commercial Taxes Department, shall issue appropriate directions to their Subordinate Officers, to distinguish what kind of minerals, are permitted to be transported, inter-state or intra-state and what are the documents, required to be possessed and displayed to the officers, at the check posts, if any; (g) The State shall establish permanent check-posts within the State with the officers equipped sufficiently to curb and prevent the illegal mining and transportation of sand; the check post officers shall maintain the record of all the vehicles crossing by; the State shall also fix camera at the check posts and connect the same with a common server to ensure that illegal mining and transportation is curbed; (h) The State shall initiate appropriate and immediate action against the persons involved in illegal mining, transportation and storage in the State and proceed for the permanent confiscation of the vehicle involved in the illegal activities and cancellation of the Registration Certificate of the vehicle, without any scope for the owner of the vehicle to plead ignorance; (i) The State shall constitute a Committee to ascertain the loss caused to the Government and take steps to recover the same from the Companies, individuals including the erring Government Servants, whose hand if found, be immediately suspended and prosecuted as per law; (j) The imported sand must be tested before the goods are cleared, if Quality Certificate is not produced by the importer and for that purpose, scientific methods for testing be deployed; (k) If any sale related to imported sand is proposed to be carried out, the same has to be done by strictly following the provisions as well as the Rules of local enactments, i.e., under the GST laws; (l) The State shall be at liberty to bring in an enactment to regulate and handle such imported sand within the State, maintenance of records, etc; (m) The respondents 13 to 16 shall issue appropriate guidelines specifying the quality of sand and its usage so as to enable the importers to get appropriate sand with Certificate from the exporter/authorities in foreign soil, so that the life and property of the common public is not jeopardised and the natural wealth of the State is preserved; and (n) A copy of this order be marked to all the parties concerned forthwith for strict compliance/adherence.";