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Sri Kasi Vishalakshi Hallow Blocks Rep. By its Proprietor I. Elumpooran v/s The State of Tamil Nadu Rep. by its Secretary, Industries Department & Others

    Writ Petition No.27704 of 2011 & M.P.No.1 of 2011

    Decided On, 28 February 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE VINOD K. SHARMA

    For the Petitioner: C. Prakasam, Advocate. For the Respondents: R. Ravichandran, A.G.P., P. Karthikeyan, G.A.



Judgment Text

(Prayer: The writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus, directing the respondents 4 and 5 to mention the petitioner's name viz., Sri Kasi Vishalakshi Hallow Blcoks in the bills, whenever the petitioner purchase the sand from the respondents 4 and 5 Government sand quarry consequently, permit the petitioner to use the JCB for loading and unloading sand in the vehicles viz., lorry, bullock carts and Tractor in the petitioner's stockyard situated in S.F.No.89/2 (Part) extent of 0.22.5 Hectare in 36 cents in Vavvivedu village, Walaja Taluk, Vellore District (Main) and S.No.23/1B to the extent of 99 cents, Sanampattarai road, Gudimallurvillage, Anaicut road via, Walaja Taluk, Vellore district and S.F.No.161/6-A and S.F.No.161/6-B, Gudimallur Village, Walaja Taluk, Vellore District (branch).)

1. The petitioner has approached this Court with the prayer for issuance of a writ in the nature of mandamus, directing the Executive Engineer, Public Works Department, Vellore District to include the name of the petitioner in the bills on purchase of sand from the respondents No.4 and 5 Government sand quarry and permit the petitioner to use JCB for loading and unloading sand in vehicle, i.e. Lorry, bullock carts and tractors at the petitioner's stockyard situated in S.F.No.89/2 (Part) extent of 0.22.5 Hectare in 36 cents in Vavvivedu village, Walaja Taluk, Vellore District (Main) and S.No.23/1B to the extent of 99 cents, Sanampattarai road, Gudimallurvillage, Anaicut road via, Walaja Taluk, Vellore district and S.F.No.161/6-A and S.F.No.161/6-B, Gudimallur Village, Walaja Taluk, Vellore District (branch).

2. The petitioner is a dealer in sand and other building materials and registered with the sales tax department under Tamil Nadu General sales tax (VAT) 2006. The petitioner is purchasing sand from Public Works Department and is transporting it with valid bills issued by the Public Works department to the leasehold land and own land stockyard of the petitioner. The petitioner owns a vehicle and also hiring vehicles for transporting sand. The sand is processed, purified, filtered and raw sand is being purchased by the intending buyers and transporting to the destination of the purchaser's choice on a valid bills issued by the petitioner after paying necessary tax to the Government of Tamil Nadu.

3. The case of the petitioner is that the respondents are not permitting the petitioner to use JCB for loading and unloading of sand and also not permitting use of Bullock cart and Tractor etc. for transporting sand in arbitrary manner. Therefore, prays for issuance of a writ in the nature of mandamus as referred to above.

4. The writ petition is opposed by the State, on the ground that the relief claimed is in violation of Rules 36-A(6) and 38-C of the Tamil Nadu Minor Mineral Concession Rules, 1959 which read as under:

"36-A(6): No machinery shall be used for quarrying sand from river beds, except with the permission of the Secretary to Government, Industries Department or any other authority or Officer, as may be authorised by him in this behalf, who may grant such permission if use of such machinery will not be detrimental to ecology."

38-C. Storage and transportation of sand (1)(a) No person shall transport sand without a valid transport permit issued by the Public Works Department or without a sale slip of Licensee duly authenticated by the taluk headquarters Deputy Tahsildar of the jurisdiction from which the sand is transported.

(b) No person shall stock sand for sale in any place without a valid licence.

(2)(a) No person shall transport sand in any vehicle from the quarry of the Public Works Department without a transport permit issued by the Public Works Department as in Appendix-XVII.

(b) No person shall transport sand in any vehicle from the stockyard without the sale slip issued by the Licensee as in Appexdix-XVIII and duly authenticated by the taluk headquarters Deputy Tahsildar as in Appendix-XIX.

(3) Any person who intends to store sand for sale shall make an application for grant of licence in the Form in Appendix-XX to the District Collector concerned:

Provided that if any person who has stored sand for the purpose of sale on the date of coming into force of this Rule shall apply to the District Collector in the said form for grant of licence for the purpose of this Rule within sixty days from the date of coming into force of this Rule.

(4) The person who makes an application as in Appendix-XX for the grant of licence, shall remit a non-refundable application fee of Rs.5000/- (Rupees Five Thousand only) to the District Collector concerned.

(5) On an application made provided that where the application is not complete in all material particulars, or is not accompanied by the required documents, the District Collector shall return or by notice require the applicant to supply the omission or furnish the document as the case may be within a period of ten days from the date of receipt of such notice under sub-rule (3). The District Collector may refer the said application to the Assistant Director or the Deputy Director of Geology and Mining concerned in the district for inspection of the area and report.

(6)(a) On receipt of inspection report from the Assistant Director or the Deputy Director of Geology and Mining as the case may be, the District Collector may grant a licence in the form in Appendix-XXI or for the reasons recorded in writing, refuse to grant such licence.

(b) The District Collector shall pass orders on the application within a period of thirty days from the date of receipt of the application:

Provided that the aforesaid period of thirty days shall be applicable only if the application for licence is complete in all respects. In respect of re-submitted applications, the said period shall be reckoned only from the date of re-submission of such application.

(7) The period of licence shall not exceed one year from the date of grant of licence.

(8) A licence may be renewed for a period of not exceeding one year from the date of expiry of licence granted under clause (a) of sub-rule (6). The application for renewal shall be submitted thirty days before the date of expiry of licence. The procedure specified for grant of licence and fee shall apply for renewal mutatis mutandis.

(9) When the Licensee sells the sand from the stockyard, the Licensee shall submit the original transport permit issued by the Public Works Department to the concerned taluk headquarter Deputy Tahsildar along with the sale slip issued by him. The taluk headquarter Deputy Tahsildar shall affix the seal as in Appendix-XIX on the quantum of sale slip which is equivalent of the quantum of sand transported with the Public Works Department transport permit slip and also make necessary endorsement on the original transport permit submitted by the Licensee.

(10) Every Licensee shall submit a monthly return as in Appendix-XXII to the District Collector before 10th of succeeding month.

(11) Non-possession of transport permit or sale slip for transport of the sand shall be construed as illicit transportation of sand.

(12) Whenever any person stocks the sand or transports or causes to be transported the sand without any lawful authority, and for that purpose uses any tool, equipment, vehicle or any other thing, such sand, tool, equipment, vehicle or any other thing shall be liable to be seized by the competent authorities and shall also be liable for confiscation of the same. For such confiscation, the competent authorities shall make a complaint in this behalf before the competent Court. Before making such complaint, the competent authorities shall obtain specific sanction of the District Collector, for making such a complaint.

(13) The taluk headquarter Deputy Tahsildar who authenticates the sale slip shall maintain a day book register, indicating date wise number of authentication made by him, to whom it has been made and the quantum of sand for which sale slips are issued and such other particulars as are required.

(14) The taluk headquarter Deputy Tahsildar at the end of each month shall prepare and submit a return on the number of sale slips authenticated, to whom it has been issued and the quantum of sand covered therein to the District Collector concerned and such return shall be submitted before 10th of succeeding month.

(15) If any violation of condition of licence is found, the District Collector concerned shall cancel the licence after affording an opportunity of hearing to the Licensee."

5. The reading of the provisions of Rules 36-A(6) and 38-C does not support the stand of the State. The sale of sand is regulated by statutory rules. The rules do not bar any mode of transportation, provided that there is a valid permit issued to the lorry or Bullock Carts.

6. Only bar under the rules is that in absence of requisite permit from the Secretary, the petitioner cannot be allowed to take sand in the lorry or any other transport vehicle. Similarly, JCB machine cannot be used in the river bed, but there is no bar to use JCB machine in the compound where the sand is stored for

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sale. Merely because there are chances of JCB machines being misused, cannot be the ground to impose restriction on Trade and practice of the petitioner in selling the sand, under a valid permit. 7. At the sake of repetition, it is made clear, that the petitioner shall only be entitled to use JCB machine within the compound area where permit is granted for storage of sand for the purpose of loading of the sand in the vehicle, or Bullock Carts, holding valid permit as per the rules. 8. This writ petition is disposed of with the direction that the petitioner shall be entitled to use JCB machine within specified compound where sand is stored for exclusive purpose of loading in the transport vehicle having valid permit. In case JCB vehicle is used for lifting sand from river bed, or sand is loaded in lorry or Bullock cart not having valid permit, it shall be open to the respondents to proceed in accordance with rules against defaulting party. 9. No costs. Consequently, connected miscellaneous petition is closed.
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