Babith Raj and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945** ## **WP(C) NO. 15537 OF 2023** ## **PETITIONERS:** - **1 BABITH RAJ, AGED 43 YEARS, S/O DHARMARAJAN, R/O SREEDHARMA, KARUMANDALCHERI, PARAVUR VILLAGE, KOLLAM, PIN - 691301** - **2 JAIKUMAR. AGED 51 YEARS, S/O SREEDHARAN, R/O PADMASAROVARAM, ALANTHARA, VENJARANMOOD, THIRUVANANTHAPURAM, PIN - 695607** - **3 ARUN RAVEENDRAN, AGED 36 YEARS, S/O RAVEENDRAN, R/O ARANNYA, VENDAR P.0, KOTTARAKKARA, KOLLAM, PIN - 691507** - **4 MUYUNUDEEN, AGED 52 YEARS,S/O ABDUL SALAM HAJI, R/O KUNNUMPURATH BUNGALOW, ITHIKKARA, MYLAKKADU P.0, KOLLAM, PIN - 691571** - **5 VIJAYAKUMAR.C, AGED 52 YEARS, S/O VIDHYADHARAN, R/O VIJAYA VILASOM, PUTHICHIRA, UMAYANALLOOR P. O, KOLLAM, PIN - 691507** - **6 BIJUKUMAR. K, AGED 51 YEARS, S/O KRISHNAN NAIR, R/O TC 10/ 12832, PONNMANGALAM KHADI BOARD LINE, MELATHUMELE, VATTIYOORKAVU P. O, THIRUVANANTHAPURAM, PIN - 695013** - **7 SURESH KUMAR. SAGED 54 YEARSS/ O SIVASANKARAN NAIR, R/O NEERANJANAM PAZHAVADI, NEDUMANGAD P. O, THIRUVANANTHAPURARM, PIN - 695884** - **8 RAJEEV. GAGED 46 YEARSS/O K. GOPALAKRISHNAN R/O LAVANYAM, PERUMPUZHA P.0, KOLLAM, PIN - 691504 BY ADVS. HARIKRISHNAN M.S. M.K.CHANDRA MOHANDAS SHAKTHI PRAKASH K.DHRUV KUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALAREPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THINIVANANTHAPURAM ., PIN - 695001** W.P.(C) No.15537/2023 : 2 : - **2 DIRECTORATE OF MINING AND GEOLOGYREPRESENTED BY THE DIRECTOR, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM ., PIN - 695004** - ***3 PRIME SAND AND AGGREGATESEDAMON, PUNALUR, PIN691307, REPRESENTED BY PARTNER, SAJAN K THOMAS, S/O K C THOMAS, VILLA NO.30, CINCO GARDENS, VADAVATHUR, KOTTAYAM PIN 686010** - ***4 MINE STAR PRIVATE LIMITED KANJIRAPPALLY, KOTTAYAM REPRESENTED BY MANAGING DIRECTOR, STELLAMOL SAJAN, W/O SAJAN K THOMAS, KULANGARAMURIYIL, CHIRAKKADAVU P.O., KANJIRAPPALLY, KOTTAYAM PIN 686506** - ***5 KCB TRANSPORTATION PRIVATE LIMITED 175/4, KOTTAPPURAM, KOTTARAKKARA, PIN 691531 REPRESENTED BY MANAGING DIRECTOR MR. BIJU KARUNAKARAN, S/O KARUNAKARAN PILLAI, BIJU MANDIR, PALLIMON, KOLLAM** **[ADDITIONAL RESPONDENTS R3 TO R5 ARE IMPLEADED AS PER ORDER DATED 09.06.2023 IN I.A. NO.1 OF 2023]** **BY ADVS. SHAIJAN C.GEORGE VINAI JOHN SUJITHA S.** **BY SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.15537/2023 : 3 : ## **J U D G M E N T** ## _**Dated this the 14[th] day of August, 2023**_ The petitioners, who are owners of Crusher Units operating in Kollam and Thiruvananthapuram Districts, have filed this writ petition seeking to direct the respondents to consider Ext.P2 representation within a time frame and to set aside Ext.P1 to the extent it permits import of granite (building stone) and its aggregates from other States by road. 2. The contention of the petitioners is that the import of minor minerals from other States are governed by Rule 107 of the Kerala Minor Mineral Concession Rules, 2015 under which 'a person who brings minerals to the State of Kerala from other Countries or other States in India by means of ship or rail shall be considered as a producer under these rules'. W.P.(C) No.15537/2023 : 4 : 3. The contention of the petitioners is that as the rule permits only bringing import of minerals by ship or rail and hence the import through road necessarily should be treated as prohibited. Therefore, Ext.P1 Circular issued by the 1[st] respondent is illegal and unsustainable. It is ultra vires the Kerala Minor Mineral Concession Rules. 4. The counsel for the petitioners further urged that there are no mechanism in the check post to detect the illegal import of minor minerals and to regulate the same. Unless an effective mechanism is in place, such import through road cannot be permitted. 5. Senior Government Pleader entered appearance and resisted the writ petition. The Senior Government Pleader submitted that the issue involved in this writ petition is covered by the judgment of the Hon'ble Apex Court in _**State of Gujarat and others v. Jayeshbhai Kanjibhai Kalathiya and others** [(2019) 16 SCC 513]._ 6. I have heard the learned counsel for the petitioners, the learned Senior Government Pleader W.P.(C) No.15537/2023 : 5 : representing respondents 1 and 2 and the learned counsel appearing for additional respondents 3 to 5. 7. The argument of the petitioners is that the import of minor minerals through road should not be permitted in view of Rule 107 of the Kerala Minor Mineral Concession Rules, 2015. The petitioners would submit that in view of Rule 107 of the Kerala Minor Mineral Concession Rules, 2015, it should be presumed that there is a prohibition of importing of minerals through road. 8. I find that Rule 107 does not indicate any prohibition of import of minerals through road. Furthermore, the issue of import of minerals from other States has been considered by the Hon'ble Apex Court _**in State of Gujarat and others**_ (supra). 9. In the said case, the Hon'ble Apex Court has been considered a notification issued by the Government of Gujarat as follows:- The Government of Gujarat issued a Notification on 11-6-2010 thereby amending the Gujarat Minor Mineral Rules, 1966 by making the Gujarat Minor Mineral (Amendment) Rules, 2010 with the W.P.(C) No.15537/2023 : 6 : insertion of Rule 44-BB, with immediate effect. This amendment was done in purported exercise of powers conferred under Section 15 read with Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the MMDR Act"). By way of Rule 44-BB, movement of sand beyond the border of the State of Gujarat was prohibited. Rule 44-BB reads as under: "No movement of sand shall be allowed beyond the border of the State. In case any vehicle is found transporting sand to the neighbouring State, even with authorised royalty pass or delivery challan, it shall be treated as violation of the Act and the Rules made thereunder and the penal provisions as specified therein shall be applicable." Within two months thereafter i.e. on 26-8-2010, the State of Gujarat also notified the Gujarat Minor Mineral Concession Rules, 2010 so as to repeal the Gujarat Minor Mineral Rules, 1966. Rule 71 of the new Rules was to the same effect as Rule 44BB and the same is as under: Prohibition to transport sand beyond border - No movement of sand shall be allowed beyond the border of the State. In case, any vehicle is found transporting sand to the neighbouring State even with authorised royalty pass or delivery challan, it shall be treated as violation of the Act and the Rules made thereunder and the penal provisions, except compounding, as specified therein shall be applicable.'' ## 10. After considering the arguments raised, the ## Hon'ble Apex Court held as follows; In order to justify any "preference" or "discrimination" under Article 303, a scarcity of goods would have to be made out. It is a matter of record that the Study Group's report on which W.P.(C) No.15537/2023 : 7 : reliance is placed by the appellant, focuses on the need to restrict the export of sand outside India and not within India. In any case, nothing prevents the appellant from restricting the quantum of sand being excavated. However, once the appellant State permits sand to be excavated, neither can it legally restrict its movement within the territory of India nor is the same constitutionally permissible. Likewise, there is no restriction on the State importing sand from other States. If it is the case that the demand of any State is not being met, it may purchase sand from other States. In any event, the market will dictate trade in sand inasmuch as it may make no business sense for mining company to transport and sell its sand in a faraway destination after incurring large costs on transportation. Therefore, it is without any doubt that once State permits sand to be excavated, the Government cannot restricts its movements within the territory of India nor is the same constitutionally permissible. There is no restriction on the State importing sands from other States. In view of the law laid down by the Hon'ble Apex Court in _**State of Gujarat and others**_ (supra), the prime relief sought for by the petitioners is only to be rejected. The writ petition is therefore dismissed. However, it is made clear that as regards regulation of import of minerals through road at the check post in the Kerala State, if there are any W.P.(C) No.15537/2023 : 8 : discrepancies or irregularities going on, the petitioners will be at liberty to bring it to the notice of the respondents. **Sd/N. NAGARESH JUDGE** sss W.P.(C) No.15537/2023 : 9 : ## **APPENDIX OF WP(C) 15537/2023** **PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE CIRCULAR BEARING NO. 57/A3/2018/ID DATED 06.03.2018 ISSUED BY THE CHIEF SECRETARY, INDUSTRIES (A) DEPARTMENT** **EXHIBIT P2 TRUE COPY OF REPRESENTATION DATED 26.04.2023 SUBMITTED BY THE PETITIONERS** ## **RESPONDENT EXHIBITS** **EXHIBIT R3(A) A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 4TH ADDL. RESPONDENT WITH GST REGISTRATION NO. GSTIN32AANCM8047R1ZO.** **EXHIBIT R3(B) A TRUE COPY OF THE CERTIFICATE OF REGISTRATION FOR TRANSPORTATION OF STORAGE OF MINERALS UNDER THE TAMIL NADU PREVENTION OF ILLEGAL MINING, TRANSPORTATION AND STORAGE OF MINERALS AND MINERAL DEALERS RULES, 2011 DATED 14.11.2022 EXHIBIT R3(C) A TRUE COPY OF THE PURCHASE ORDER ISSUED BY M/S VISWASAMUDRA DATED 6.3.2023. EXHIBIT R3(D) A TRUE COPY OF THE PURCHASE ORDER ISSUED BY M/S SHIVALAYA CONSTRUCTION PVT LTD DATED 10.5.2023. EXHIBIT R3(F) A TRUE COPY OF THE ORDER OF THE COMMISSIONER OF GEOLOGY AND MINING DATED 21.04.2023. EXHIBIT R3(G) A TRUE COPY OF THE ORDER/LETTER ISSUED BY THE COMMISSIONER OF GEOLOGY AND MINING DATED 01.06.2023. EXHIBIT R3(E) A TRUE COPY OF THE JUDGEMENT IN W.P. (M.D). NOS. 5081 OF 2019 AND 17092 OF 2020 DATED 11.02.2021 OF THE HONOURABLE MADURAI BENCH OF MADRAS HIGH COURT.**