DINESH MEHTA, J. - (1.) By way of the present writ petition, the petitioners have challenged vires of Rules 2 (xvi), 60 (4) and 92 of the Rajasthan Minor Mineral Concession Rules, 2017 (hereinafter referred to as "the Rules of 2017"), which read thus :- "2(xvi) "Dealer" means any person who carries on the business of buying, selling, storing, distributing or processing of minerals, directly or otherwise for cash or for deferred payment or for commission, remuneration or other valuable consideration or uses minerals as a raw material;" 60. Establishment of check posts or barriers and inspection of minerals in transit and weighment.- (1) XXX XXX XXX (2) XXX XXX XXX (3) XXX XXX XXX (4) Every owner or person incharge of a vehicle shall carry with him a valid rawanna, transit pass or royalty receipt duly authenticated by the department in respect of the mineral carried and shall produce the same before any officer incharge of a check post or other officer or official empowered under sub-rule (2). Explanation: Mineral shall not cease to be mineral by reason of being subjected to any process like crushing, breaking, drying, pulverizing, calcinising or any other procedure intended to make the mineral fit or suitable for sale or consumption. 92. Transit Pass.- (1) The dealer or stockiest shall submit an application for transit pass to dispatch royalty paid mineral to Mining Engineer or Assistant Mining Engineer concerned in Form-33 duly specifying all the particulars prescribed therein. (2) The application for transit pass shall be accompanied by a copy of relevant documents of royalty payment i.e. royalty receipts, rawanna or transit pass in the name of dealer or stockiest along with receipt and dispatch register of stock. (3) On receipt of an application under sub-rule (1), after physical verification, the Mining Engineer or Assistant Mining Engineer concerned may issue transit pass in Form-34 for specified quantity and period subject to such terms and conditions as deemed necessary. The Mining Engineer or Assistant Mining Engineer may refuse to issue transit pass for reasons to be recorded in writing and communicated to the dealer. (4) The Mining Engineer or Assistant Mining Engineer shall maintain register of issue of transit pass in Form-35. (5) Rawanna, royalty receipts or transit pass submitted by the dealer in lieu of transit passes shall be stamped as "cancelled and transit pass issued" by the Mining Engineer or Assistant Mining Engineer concerned." No sooner had the learned counsel for the petitioners begun his submissions, than Mr. Sandeep Shah, learned Addl. Advocate General pointed out that the vires of these Rules has already been affirmed by a Coordinate Bench of this Court at Jaipur, vide its judgment dated 20.04.2018 rendered in case of Ajitgarh Audyogik Kshetra Udyami Sanstha Vs. State of Raj. and Ors., (DB Civil Writ No.494/2018). He further submitted that while upholding Rule 2(xvi) and Rule 60(4) of the Rules of 2017, the Division Bench has also found the circular issued by the Government, to be in sync with the Rules of 2017.
(2.) .At this juncture, Mr. D.D. Thanvi, learned counsel for the petitioners contended that the Division Bench at Jaipur has only examined the challenge to Rule 2(xvi) and Rule 60(4) of the Rules of 2017, whereas Rule 92 of the Rules of 2017 has not been subject matter of the said writ petition. He contended that besides this, not only the facts involved in the case before Division Bench at Jaipur were different from the facts involved in the present case, even the grievance are different. Highlighting his grievance, learned counsel submitted that the petitioners besides purchasing the minerals after payment of appropriate royalty, also purchase marble slurry and mineral waste, to be processed in their grinding units/crushers. He contended that requirement of obtaining transit pass even qua the marble slurry and mineral waste is illegal, arbitrary and an unnecessary hindrance in their right to trade.
(3.) While advancing his arguments further, he contended that once the mineral is excavated and dispatched from mine heads, the State Government loses its authority or power to control and legislate. The impugned Rules, including Rule 92 of the Rules of 2017, requiring the petitioners and other similarly situated manufacturers to obtain transit pass, even in relation to marble slurry and waste, which are not minerals per se, are illegal and beyond the rule making power of the State Government, which flows from Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the MMDR Act").;