@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdashCNS HI-Q Hollow & Fly Ash Bricks, a Registered Firm, represented by its Managing Director, has filed this Writ Petition, for a Mandamus, forbearing the respondents, their agents, subordinates, officers and men, from in anyway interfering with them and their customer''s right to transport Dry Mortar Mix, Hollow Blocks, Fly Ash, from the factory premises, at Door No. 55/68, Ellappanayakkan Valasu, Mathukkampalayam Road, Veerachimangalam Post, Dharapuram Taluk, Tiruppur District, to the place of its purchaser''s destination in the State of Kerala, with valid bills, issued by them, through the border check posts, in Coimbatore District, under the control of the respondents. The petitioner, is a partnership firm and according to them, they purchase fly ash, gypsum, lime stone, iron oxide, cement, steel, quarry waste, jally, metal sand etc. They manufacture Hollow Blocks, Fly Ash Bricks and Dry Mortar Mix and sell them on wholesale or retail basis. There are two other partners. The Firm has taken land on lease and established a factory, by installing machineries, worth Rs. 25,00,000/-. In the factory, 25 persons are employed. Dry Mortar Mix and Fly Ash Bricks are manufactured by mixing the raw materials, referred to above, in the correct proportion, as per the ISI Standard. They also sell the manufactured products to various persons in the States of Tamil Nadu and Kerala. According to the petitioner, they have registered themselves with the Industries and Commerce Department, Sales Tax and Commercial Tax Departments. The seller of the materials pays the statutory dues, sales tax, etc., Similarly, they also pay taxes within Tamil Nadu and in Kerala.
2. The petitioner has further submitted that dry mortar mix is a semi finished product, consisting of various ingredients, as fixed by ISI. The purchaser can utilise the same, for various purposes, after mixing the required quantity of water and it can be used for manufacturing tiles, in construction of buildings and plastering. Hollow blocks and fly ash bricks are finished products. Dry Mortar mix is transported in gunny bags, each weighing 50 kgs., in lorries to various purchasers.
3. It is the case of the petitioner that abovesaid goods are transported to various places, including State of Kerala, without any problem at all other check posts, except, at the check posts situated, at the border of Coimbatore District, while entering Kerala State. Lorries are detained, at the border check posts of Coimbatore District and penalties are imposed by the District Collector, Coimbatore, 1st respondent herein. Lorries are released, only if the penalty is paid or when the FIR registered is quashed. Because of detention of lorries at the check posts of Coimbatore, the transport contractors, owning the lorries, are not willing to accept the contracts to transport Dry Mortar Mix, Hollow Blocks, Fly Ash Bricks, to the State of Kerala, through the Coimbatore District check posts. In these circumstances, the petitioner has filed this writ petition, for the relief, as stated supra.
4. In support of the abovesaid contention, Mr. Thambusamy, learned counsel for the petitioner invited the attention of this Court to the registration certificate, which the petitioner has obtained from the Assistant Commissioner-II, FAC, Commercial Taxes Department, Palani, wherein, the nature of business has been mentioned as manufacturer of dry mortar mix and M'' Sand, with effect from 17.09.2012. He has also invited the attention of this Court to the interim order made in M.P. No. 1 of 2012 in W.P. No. 29338 of 2012, dated 05.11.2012, by which, an injunction has been granted, restraining the respondents therein and their subordinates, from interfering with the petitioner therein, and the petitioner''s customer''s right, to transport and processed crusher material, ie., M. Sand from the crushing unit of the petitioner.
5. Reference has also been made to the orders, made in Crl. O.P. No. 29407 of 2012, dated 19.11.2012, filed by M/s. Scorpio Tiles Pvt. Ltd., wherein, this Court has directed the respondent-Police, not to seize the vehicles and not to interfere with the affairs of the petitioner therein, until further orders. He has also placed reliance on the Test Certificate, dated 11.12.2012, issued by the Deputy Director), Department of Industries and Commerce, Regional Testing Laboratory, Civil Aero Drome, Coimbatore-14 to the petitioner.
6. When the matter came up earlier, the District Collector, Coimbatore, 1st respondent herein, has filed a counter affidavit, denying the allegation that no vehicle of the petitioner, carrying the manufactured product was detained at the border check posts, of Coimbatore District and no penalty has been imposed by the District Collector. He has further submitted that Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, the penalty levying authority, in respect of minor minerals, viz., building and road construction stones, including gravel, ordinary sand, earth and turf, ordinary clay, including silt, brick and tile clay, is the concerned Revenue Divisional Officer, of the respective jurisdiction. The District Collector is an appellate authority, as per Rule 36-C of the abovesaid Rules.
7. According to the 1st respondent, though the petitioner and other traders, have registered themselves with the Industries and Commerce Department, Sales Tax and Commercial Tax Department, stating that there are manufacturing Dry Mortar Mix, Hollow Blocks and Fly Ash Bricks, they mostly transport river sand, by spreading a few bags of mixtures on the top, and river sand underneath the carrier. According to him, as per Rule 38-B of the abovesaid Rules, transport of river sand to Kerala is prohibited. Therefore, according to the 1st respondent, the officials at every border check posts, have to check the vehicles, in order to prevent smuggling of minerals.
8. Mr. A.S. Thambusamy, learned counsel for the petitioner submitted that when the matter came up earlier, this Court felt that an affidavit should be filed by the petitioner, making it clear that the petitioner would transport only dry mortar mix and that he would not transport river sand, at any point of time. Inviting the attention of this Court to Paragraphs 4, 5 and 6 of the affidavit, dated 23rd April, 2013, filed to that effect, he submitted that having regard to the undertaking given by the petitioner, Mandamus has to be issued.
9. However, considering the issue, as to whether, transportation of dry mortar, a construction material, can be permitted outside the State of Tamil Nadu, without permission from the authorities under the Tamil Nadu Minor Mineral Concession Rules, 1959, learned Additional Government Pleader was directed to get instructions.
10. The Additional Secretary to the Government, Industries Department, Secretariat, Chennai, has filed an affidavit, stating that dry mortar mix, hollow blocks and fly ash are all manufacture products and hence, there is no ban, as on date, to transport them to the State of Kerala.
11. At this juncture, this Court deems it fit to extract the plain meaning of "fly ash" and fly ash bricks, which are as follows:
Fly ash, also known as flue-ash, is one of the residues generated in combustion, and comprises the fine particles that rise with the flue gases. Ash which does not rise is termed bottom ash. In an industrial context, fly ash usually refers to ash produced during combustion of coal. Fly ash is generally captured by electrostatic precipitators or other particle filtration equipment before the flue gases reach the chimneys of coal-fired power plants, and together with bottom ash removed from the bottom of the furnace is in this case jointly known as coal ash. Depending upon the source and makeup of the coal being burned, the components of fly ash vary considerably, but all fly ash includes substantial amounts of silicon dioxide (Si O2) (both amorphous and crystalline) and calcium oxide (CaO), both being endemic ingredients in many coal-bearing rock strata.
Fly ash is a byproduct of coal-fired power plants. Instead of disposing this waste and overloading local landfills, people are finding ways to recycle it, which helps preserve the environment.
Fly ash brick (FAB) is a building material, specifically masonry units, containing class C fly ash and water. Compressed at 28 MPa (272 atm) and cured for 24 hours in a 660C steam bath, then toughened with an air entrainment agent, the bricks last for more than 100 freeze-thaw cycles. Owing to the high concentration of calcium oxide in class C fly ash, the brick is described as "self-cementing". The manufacturing method saves energy, reduces mercury pollution, and costs 20% less than traditional clay brick manufacturing.
12. Material on record discloses that the petitioner has enclosed a test certificate, dated 11th December, 2012, in the typed set of papers, issued by the Regional Testing Laboratory, Department of Industries and Commerce. Sample has been received on 28.11.2012 and that a certificate has been issued on 11.12.2012. The present writ petition has been filed on 11.02.2013. After 11.12.2012, no materials have been enclosed in the typed set of papers to show, as to when the petitioner has intended to transport, dry mortar mix to Kerala, through the border check posts, in Coimbatore District and when dry mortar mix manufactured, after 11.12.2012, has been tested by the Deputy Director ), Department of Industries and Commerce, Regional Testing Laboratory, Civil Aero Drome, Coimbatore-14, to prove that what is intended to be transported, was only dry mortar mix.
13. Material on record further discloses that earlier, on 08.01.2013, when the petitioner was transporting mineral, in a lorry, bearing Registration No. TN 39 AC 1162, at Velanthaavalam, Vazhukal Check Post, within the jurisdiction of Kandaigoundan Chavadi Police Station, Coimbatore District, it has been found that the petitioner had transported 15 tonnes (300 x 15 Kg bags) of dry mortar mix (sand and cement).
14. By introduction of Rule 38-A, in the Tamil Nadu Minor Mineral Concession Rules, 1959, with effect from 1st October, 2003, all the then existing leases have come to an end and that the Government have taken over quarrying rights of sand. Except Public Works Department, nobody has a right to quarry sand. However, the indiscriminate quarrying and depletion of natural resources, is apparent, when several cases have been registered against the transporters of river sand, intra-state and to the State of Kerala. Many a times, when vehicles are intercepted by the Police or Revenue or Mining Authorities, the vehicles are released by imposing conditions.
15. As per Rule 38-B of the Tamil Nadu Minor Mineral Concession Rules, 1959, transportation of sand, across the border of Tamil Nadu State, is impermissible. What is now sought to be transported from the State of Tamil Nadu, particularly from the petitioner''s factory premises, i.e., from Door No. 55/68, Ellappanayakkan Valasu, Mathukkampalayam Road, Veerachimangalam Post, Dharapuram Taluk, Tiruppur District, to the State of Kerala, is a mixture of sand plus cement, added with certain components, such as, lime to prevent hardening of the above mixture.
16. According to the Additional Secretary to the Government, Industries Department, Chennai, there is no ban for transportation of dry mortar mix. Transportation of sand in its original form is prohibited. But from the statement of the Additional Secretary to the Government, transportation of sand, in the form of a mixture, is not restricted. From the above, it could be deduced that what cannot be done directly, can be done, indirectly, if the said is used as a component in dry mortar mix.
17. Cement in its powder form, mixed with river sand, is ordinarily inseparable. Sand mixed with even a little quantity of fly ash, will certainly give the colour of a dry mixture (sand plus cement). There is a possibility of transporting sand mixed with fly ash, as dry mortar mix. Thereafter, cement can be added to this mixture of sand and fly ash, depending upon the use of mortar, either for flooring, plastering or for any other construction work. Sand plus fly ash, even if it is mixed together, can still be used as sand for all purposes, in construction works. Transportation of ''Rectified Spirit'' without a permit is prohibited. Whether the same would be permitted to be transported, if it is mixed with some other solution or mixed with water?
18. No guidelines or instructions have been placed before this Court, by which, the officials of the Department of Industries and Commerce, Government of Tamil Nadu, can check the consignments and issue any certificate to the effect that the carrier contains only dry mortar, in the ratio of 1:3:06 (1:3) or 1:5:96 (1:6). However, the typed set of papers enclosed, contains a test certificate, dated 11.12.2012.
19. According to the respondents, transportation of dry mortar mix is not banned. In public interest, this Court is of the view that there should be a mechanism or procedure, devised by the authorities, by which, the consignment transported in the carrier, should be certified by any competent authority, under the Department of Industries and Commerce. Such certificate may be issued, after satisfying the test certificate issued by the Regional Laboratory of the Department of Industries and Commerce.
20. The number of gunny bags or any other mode, in which, the dry mortar is packed and transported, may be mentioned in the certificate issued by the Department of Industries and Commerce, containing the name of the consignor or consignee, name of the transporter, driver of the vehicle, registration number of the vehicle and all other details, which are required, can also be mentioned in the certificate issued by the Department of Industries and Commerce, to prove that what is being transported in the gunny bags or in any other mode, is nothing but dry mortar mix and not sand.
21. In a given case, a dealer can always keep the gunny bags or any other bags, carrying sand at the bottom of the carrier and dry mortar mix or silica sand, on the top, for which, no permission is required for transportation. In that process, it may not be possible for the officers at the check posts to off-load the gunny bags and verify each and every bag, to find out, as to whether, what is transported, is only dry mortar mix and unless and until, the officers at the check posts, receive any information or on suspicion, conduct a thorough check.
22. But if any certificate is issued, by a competent authority, stating that the consignment contains only dry mortar mix, then upon verification of the test certificate, declaration of the seller, transporter, consignor, distributor, etc., during transit, if it is noticed that there is any contravention of the Mines and Minerals (Development and Regulation) Act, Tamil Nadu Minor Mineral Concession Rules, 1959 and the Prevention Rules, 2011, responsibility can be fixed on the sellor, supplier, distributor or the purchaser or even the authority, who has issued any such certificate, for the contravention of the Mining Laws. Acknowledgement Part-II enclosed at Page 27 of the typed set of papers, issued by the District Industries Centre, Tirupur, is extracted hereunder:
Form No. 006499
D. Dis. No. 06499/D1/2012-13
Dated: 29.01.2013
GOVERNMENT OF TAMIL NADU
DEPARTMENT OF INDUSTRIES AND COMMERCE
ACKNOWLEDGEMENT PART-II
1. M/s. CNS HI-Q HOLLOW & FLYASH BRICKS (PARTNERSHIP) HAS FILED A MEMORANDUM FOR A MANUFACTURING ENTERPRISE AT THE ADDRESS D. No. 55/68, ELLAPPANAYAKKAR VALASU, MATHUKKAM PALAYAM ROAD, VEERACHIMANGALAM (PO) DHARAPURAM BLOCK, AND TALUK, TIRUPUR 638656.
FOR THE ITEMS INDICATED BELOW AS PER THE FACTS STATED IN FORM NO. 06499 AND ALLOCATED ENTREPRENEUR''S MEMORANDUM NO..., AS BELOW:
This Acknowledgment is issued without inspection as per the guidelines of Government of India.
|
Sl. No. |
Items of Manufacture |
Capacity in case of Manufacture |
Initial date of production |
|
1 |
DRY MORTAR MIX PROPOSED ACTIVITY FLY ASH BRICKS - 24,500 Ton/Annum |
50,00,000 Nos./Annum |
06.07.2012 |
3. DETAILS OF PLANT AND MACHINERY AS PER DATE-WISE INVESTMENT
|
Sl. No |
Investment in Plant and Machinery/Equipment (Rs. in Lakhs) |
Date of Investment |
|
1. |
08.35 |
06.07.2012 |
4. NOTE: THE ISSUE OF THIS ACKNOWLEDGMENT DOES NOT BESTOW ANY LEGAL RIGHT.
THE ENTERPRISE IS REQUIRED TO SEEK REQUISITE CLEARANCE/LICENCE/PERMIT REQUIRED UNDER STATUTORY OBLIGATION STIPULATED UNDER THE LAWS OF CENTRAL GOVERNMENT/STATE GOVERNMENT/UT ADMINISTRATIONS/COURT ORDERS.
Sd/-
GENERAL MANAGER (I/C)
DISTRICT INDUSTRIES CENTRE
TIRUPUR.
23. As per the above, the quantity of dry mortar mix is 24,000 tonnes per annum and that the initial date of production is 06.07.2012. As on the said date, the proposed activity for manufacture of fly ash bricks is 50,00,000, numbers per annum. The acknowledgment in Part-II, is said to have been issued by the General Manager (I/C), District Industries Centre, Tirupur, on the basis of the facts, furnished by the petitioner, by the abovesaid authority and that the said acknowledgment has been given, without inspection, as per the guidelines of Government of India. However, the guidelines have been produced before this Court. As per the returns, in terms of Rule 7(1), Value Added Tax Monthly Return, a sum of Rs. 14,980/- is said to have been paid on 07.02.2013 and received by the Assistant Commissioner-II, Commercial Taxes (FAC), Palani, on 18.02.2013.
24. Though the Additional Secretary to the Government, Industries Department, Secretariat, Chennai, has stated that there is no ban for transporting dry mortar mix, outside Tamil Nadu, there is nothing in the counter affidavit, filed by the respondents, to indicate, as to whether, the Mining Authorities have verified, as to whether, the petitioner has purchased sand from any authorised dealer.
25. Unless the manufacturer is able to prove that sand purchased from the authorised dealers, alone has been used in the manufacture of dry mortar mix, intended for transportation, the competent authority, under the Mining Laws, may not be in a position to ascertain, as to whether, the components used in the preparation of dry mortar mix, have been purchased under valid bills from the authorised mineral dealers.
26. It may be contended that such verification is required to be done only by the officers of the Commercial Taxes Department, if any, where tax due to the Government, is sought to be evaded for sale of any goods, under the Tamil Nadu Value Added Tax Act, 2006 and the Rules framed thereunder. Sand is a goods in Schedule I, Part B Item No. 118 of the abovesaid Act. It is not out of place to ensure that while manufacturing dry mortar mix, one of the components, sand, is purchased only from the Public Works Department, at pit mouths of the quarry sites or from the registered mineral dealers, with licenses issued under the Mining Laws.
27. At this juncture, it is pertinent to refer to Sections 4(1-A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, which empowers the competent authorities to initiate action for imposing penalties. The abovesaid Sections and the Rule, are extracted hereunder:
Termination of prospecting licences or mining leases. 4(1A). No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.
21. Penalties. (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.
(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.
(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.
(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-section (1) shall be cognizable.
36-A. Penalties: (1) Whenever any person contravenes the provisions of sub-section (1) of section 4 of the Act in any land, enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of twenty five thousand rupees 3 shall be charged and recovered from that person by the District Collector or the District Forest Officer as the case may be or in the alternative, he shall liable to be punished as provided in sub-section (1) of section 21 of the Act:
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(2) No machinery hall 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.
(3) Whenever any person raises without any lawful authority any mineral from any land, the District Collector or the District Forest officer, as the case may be, may recover from such person the mineral so raised or where such mineral has already been disposed of, the price thereof, and may also recover from such person, area assessment, seigniorage fee or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this subrule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(4) Whenever any person contravenes the provisions of sub-rule (1) of rule 10 and in unlawful possession of any land the Director of Geology and Mining or the Chief Conservator of Forests, as the case may be, or the District Collector or the District Forest Officer, as the case maybe, shall, after giving notice, charge and recover from that person double the rate of the lease amount where the area was held under lease through public auction or its renewal or tender or double the total seigniorage fee where the area was held under lease through any other provisions of these rules, or in the alternative, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in the case of continuing contravention, with additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this subrule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(5) Whenever any person contravenes any provisions, other than sub-rule (1) of rule 10 of these rules or conditions of a quarrying permit or quarrying lease granted under these rules the Director of Geology and Mining or the Chief Conservator of Forests, as the case may be, or the District Collector or the District Forest Officer as the case may be, shall after giving notice, charge that person and recover from him enhanced seigniorage fee up to a maximum of fifteen times the normal rate subject to a minimum of twenty five thousand rupees or in the alternative he shall be liable to be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in the case of continuing contravention with additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this subrule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(6) No machinery shall be used for quarrying sand from river beds.
28. As per Rule 38-B of the Tamil Nadu Minor Mineral Concession Rules, 1959, no transport of sand covered under Rule 38-A of the Rules, shall be made across Tamil Nadu border to other States. In the light of the statutory provisions, relating to storage, supply, distribution or transportation of sand, inter-state across Tamil Nadu border, strict enforcement of Mining Laws is required.
29. The raw materials, that are normally used in manufacturing fly ash bricks, are (1) Flyash, (2) Sand/Stone dust, (3) Lime, (4) Gypsum, and (5) Cement, mixed in different proportionate. Sometimes, aluminum powder is also used as one of the products. Section 3(a) of the Mines and Minerals (Development and Regulation) Act, defines "Minerals, which includes, all minerals except mineral oils. "Minor Minerals" is defined in Section 3(e) of the Act, as 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. Section 4 deals with the general restrictions on undertaking prospecting and mining operations to be under licence or lease. As per Section 4(1-A), No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.
30. When both sand/stone dust or crushed dust, are minerals, within the definition of Section 3(e) of the Act and Rule 36(1-A)(c) Expl. (ii-a) of the Rules, the buyer, transporter or distributor, is required to register himself, with the District Collector, as a mineral dealer, if said mineral is sought to be transported, in its original form as sand or crusher dust. The Tamil Nadu Prevention of illegal mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011 (hereinafter referred to as the Prevention Rules, 2011 have been framed u/s 23C(1) of Mines and Minerals (Development and Regulation) Act, 1957, in exercise of the powers conferred by sub-Sections (1) and (1-A) of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957). The abovesaid Rules came into force with effect from 25.01.2011, vide G.O. Ms. No. 19, Industries (MMD. 1), dated 25.01.2011. Some of the relevant rules are extracted hereunder:
2. Definitions: In these Rules, unless the context otherwise requires:-
(ii) Authorised Officer means the District Collector of the district concerned or such other officer as may be authorised by the Government;
(iii) carrier means any mode of transport by which the mineral is transported from one place to another which includes automotive, person, animal or cart;
(iv) Competent Authority means the person as authorised u/s 22 of the Act;
(v) Deputy Director means Deputy Director of Geology and Mining which shall include Assistant Director of Geology and Mining of the district concerned;
(vi) despatch slip means a slip issued by the permit issuing officer empowered to issue such transport permit for transportation of specific quantity of mineral in each carrier;
(viii) Form means form set out in the Schedule to these rules;
(xiii) minerals means all minerals and minor minerals except sand;
(xv) mineral dealer means any person who carries on the business of buying, selling, storing, supplying, transporting distributing or delivering for sale of mineral or its products and includes.
(xvi) stockyard means a place where the minerals are stored or stocked out side the lease area;
(xvii) transport permit means a permit issued by the permit issuing officer;
(xviii) transit pass means a pass issued by the concerned Deputy Director for lawful transportation of any mineral by a carrier from the place of stockyard or from the lease area by the registree under these rules;
3. Prohibition. (1) No person shall transport or cause to be transported any mineral by any carrier from the place of raising or from the place of stockyard or from one place to another without having a valid transit pass.
(2) No person other than the mineral dealer shall store or cause to be stored any mineral at any place for purposes of sale or consumption.
(3) No mineral dealer shall store any mineral other than the place specified in the registration certificate granted under these Rules:
Provided that no person purchasing and transporting minerals for use or consumption by himself and such use or consumption does not involve any commercial activity and any holder of a mining lease or a quarry lease in respect of the minerals for which he holds a lease, shall not be required to register himself as a dealer.
4. Grant of Registration and its renewal: (1) Every Mineral Dealer and any person desirous of being registered as a Mineral Dealer under these rules shall apply to the District Collector concerned through the Deputy Director in triplicate, in Form A along with the application fee of Rs. 5,000/- (Rupees five thousand only) drawn in favour of the District Collector of the concerned District by designation. Separate application along with the said fee shall be submitted for each stockyard.
(2) On receipt of application under sub-rule (1), the Deputy Director shall acknowledge the receipt immediately in Form B and the acknowledgment shall be sent to the applicant.
5. Processing of application by the District Collector: (1) The Deputy Director shall maintain a register in Form C wherein he will make necessary entries about the said application immediately after its receipt and its disposal in due course.
(2) The Deputy Director shall process the said application and place the proposal before District Collector for orders.
(3)(a) The District Collector may grant a registration certificate in Form D within thirty days from the date of receipt of application. In case of refusal or rejection of the application, the reason shall be recorded in writing and communicated to the applicant within thirty days from the date of receipt of the application.
(b) Every Mineral Dealer who wishes to continue his registration certificate after expiry of the period for which it is granted, shall make an application in Form A along with application fee of Rs. 5,000/- (Rupees five thousands only) to the District Collector through the Deputy Director before ninety days from the date of expiry of its period.
(c) The maximum period for which the registration certificate granted or renewed shall not exceed five years.
6. Transport permit and Transit pass. (1) No person shall transport or otherwise remove or carry away any mineral from any place without obtaining a transit pass from the Deputy Director. Person desiring such passes should file an application before the Deputy Director in Form ''F'' duly specifying all the particulars prescribed therein.
(2) The application shall be accompanied by a copy of the permit showing payment of royalty/seigniorage on such mineral or other adequate proof of such payment.
(3) On receipt of an application under sub-rule (1), the Deputy Director may grant transit pass in Form ''F'' for such period and subject to such terms and conditions as may be imposed by him or may refuse to grant such transit pass for the reasons to be recorded in writing and communicated to the applicant.
(4) Any person who transports the minerals and who is required to carry transit shall produce pass on demand to the authorised officer or any officer or authority who has been empowered under sub-section (4), Section 21 of the Act.
7. Conditions. The registration certificate shall be granted in Form ''D'' subject to the following conditions:
(i) All traders in minerals should be registered as dealers. However in the case of Mineral Dealers who deal exclusively with imported minerals of a variety not available in Tamil Nadu, no inspection of the Units outside the State from which the minerals are secured will be done. The mineral traders however should file quarterly statement of their minerals imported into the State and produce proof of payment of any entry tax or other tax leviable by the State of Tamil Nadu whenever called upon to do so.
(ii) The grantee of registration shall maintain the details of minerals purchased and stocked and details of mineral transported from the stockyard and the balance of mineral available in the stockyard in Form ''E''. If the grantee of registration having more than one stockyard, each stockyard shall be registered separately and Form ''E'' shall be maintained separately for each stock yard. The stockyards are liable for verification at any time by the authority or authorised officer.
(iii) The grantee of registration shall allow any authorised officer at any time to inspect the stockyard, factories to verify the stock of ores or minerals and take sample of the abstract from the records maintained by him.
(iv) Every grantee of registration shall allow the Competent Authority or the authorised officer to enter and inspect the stockyard including the premises of the factories where such mineral is processed and he may weigh, measure or take measurements of the stocks of the minerals at such stockyard or factory.
(v) All Officers who have been authorised u/s 24 of the Act are empowered to search any place in which there is a reason to believe that offence is being committed and to seize any stock of minerals in respect of which the offence has been or is being committed.
(vi) The District Collector is empowered to issue any orders for inspections to be caused and for proper implementation of the Act and Rules within the jurisdiction of the concerned district. If any person is found to keep the mineral in the place other than in stockyard or if any grantee of registration is found to commit any offence or contravene any of the provisions of the Act or Rules including any discrepancies noted in Form ''E'' in respect of any stockyard, the District Collector shall take suitable action.
8. Seizure and confiscation. (1) Every grantee of registration permitted to stock or transport minerals shall allow the authorised officer or authority empowered by the Government under the provisions of the Act or competent authority to enter and inspect any premises where the mineral is kept or stored or transported, including the premises where imported minerals are kept or stored.
(2) Every officer seizing mineral under these Rules shall prepare the list of mineral seized and deliver a copy thereof signed by him to the person found in possession of such minerals. Thereafter the officer shall hand over such property to the concerned Tahsildar for safe custody. The Tahsildar shall fix the property with seal and send information to the District Collector for taking action.
9. Custody of the seized property. (1) The authorised officer shall keep the seized material or property under the custody of the Institution belonging to the Government or any responsible official of the Government as far as possible. Under normal circumstances, if illegal storage or transportation of mineral is noticed, the mineral may be handed over to the concerned Tahsildar with information to the officer incharge of nearby police station in writing.
(2) If the penalty is not paid within a week from the date of receipt of the copy of the proceedings, the seized property shall become the Government property and the same will be auctioned by the officer authorised by the District Collector in this regard.
10. Penalties. (1) Any person who contravenes any of the provisions of the Rules, sells or stores minerals except under and in accordance with the Registration certificate of Registrar or who transports the minerals not in accordance with transport permit issued shall be punishable with a penalty upto a maximum of Rs. 25,000/- by an order of the District Collector concerned.
(2) Any person who transports/stores mineral and takes minerals to a place except to the destination specified in the Transport permit, shall be punishable with the imprisonment for one year or with fine which may be extended up to Rs. 25,000/- or with both, if the District Collector or Revenue Divisional Officer concerned within the respective jurisdiction files FIR and tries the case in a competent Court of Law in the District.
Forms prescribed in the abovesaid Rules, are extracted hereunder:
THE SCHEDULE
FORM A
[See rule 4(1).]
(Application for Registration/renewal)
1 Name of applicant (in full)
PHOTO
2 Full address
3 Profession
4 Father''s name in full
(In case of firm, give names and addresses of partners and person holding power of attorney to act on behalf of the firm).
5 Specific place of stock or storage of mineral/place of processing mineral
(i) Survey No.:
(ii) Village:
(iii) Taluk:
(iv) District:
(v) Extent:
(vi) Area of the stock or storage points:
(vii) Specific boundaries of stock or storage point on four sides:
6 Financial status with details of Person i.e., property annual payment of Income Tax and any other relevant evidence regarding financial status:
7 Specific purpose for which Registration is applied for (Processing/Storing/Selling/Trading):
8 Name of Mineral/Ore for which Registration is required:
9 Approximate quantity proposed to be stored/processed/trade/sold:
10 Evidence of payment of application fee:
Challan No.:
Date:
Amount:
Paid at:
11 Name and address of persons/firms from whom the Mineral/Ores will be purchased/Procured:
12 Period for which Registration is required:
13 In case of renewal, the number and date of original Registration:
14 Detail of Income Tax/Sales Tax Clearance Certificate:
15 Any other information:
Declaration
I/We hereby declare that I/We have read and understood all the provisions of the Tamil Nadu Prevention of Illegal mining, transportation and storage of minerals and mineral dealers Rules, 2010 and the conditions of the Registration made there under and I/We agree to abide by the same.
Place:
Date:
Signature of Applicant.
FORM-B
[see rule 4(2).]
(Acknowledgement of receipt of application for Registration)
Received ..............................copies of applications for grant of registration certificate for storing/selling/transportation of mineral ......................... (Name of Mineral/Ore/Mineral ..................................from..... Shri/Smt. .................................................... Resident of.... ..................... P.O.................. ................ P.S. ...... District ........................today with the following enclosures:
(1)
(2)
(3)
(4)
(5)
(6)
Signature of the Assistant Director/
Deputy Director of Geology and Mining.
Place:
Date:
FORM-C
[See rule 5(1).]
(Register of Applications for Grant of Registration and its Renewal)
Sl. No.
Date of receipt of application
Name of applicant
Address of applicant
Name of mineral/Ores
(1)
(2)
(3)
(4)
(5)
Place of Processing/Storing/Selling/Trading
Date of order of grant/refusal
Brief orders on appeal if any
Date of expiry of registration if granted
Date of receipt of application for renewal
(6)
(7)
(8)
(9)
(10)
Date of grant of renewal
Period of renewal
Remarks
(11)
(12)
(13)
FORM-D
[See rule 5(2).]
Certificate of registration for transportation or Storage of Minerals under the Tamil Nadu Prevention of Illegal mining, transportation and storage of minerals and mineral dealers Rules, 2010.
In exercise of the powers conferred by rule 5(2) of the Tamil Nadu Prevention of Illegal Mining, Regulation of Transportation and Storage of Minerals Rules, 2010, District Collector of ... District this registration is hereby grant to Thiru/Tmt/Tvl/............................................................................................................................................................................... (with address) for the purpose of storing/processing/consuming of.......................................................... (name of the mineral to be specified here) at Survey No..... village ..... Taluk ......... District ..........subject to the conditions stipulated in Tamil Nadu Prevention of Illegal Mining and Transportation, Storage and Mineral dealers Rules, 2010.
This Registration is valid from ...........................to ....................... (dates to be specified)
Place:
Date:
Seal:
District Collector.
FORM-E
[see rule 7(ii).]
(Account of ores/minerals to be maintained by the grantee of registration)
1. Name of the grantee of registration No. ..
2 Full Address ..
3 No. and date of registration ..
4 Period of Registration ..
5 Name of Mineral & Ore ..
6 Name of the person registered ..
7 Postal Address of the Factory/person registered ..
8 Designation of the Officer of the Department of Geology and Mining ..
Month and Year
Date
Opening balance of Mineral
Quantity of Mineral
(1)
(2)
(3)
(4)
Quantity of Mineral transported and permitted to be removed
Quantity of Mineral available after transport
Closing balance of Mineral
Remarks
(5)
(6)
(7)
(8)
FORM-F
[See rule 6(1).]
TRANSIT PASS
Transit Pass Book No
Transit Pass/Serial No. ................
To be filled by the Deputy Director of Geology and Mining in the District Concerned]
1 Name and address of person registered under this rule (with registration No.) Registration No.:
2 Place from which mineral is to be transported.
S. No.:
Village:
Taluk:
District:
3 Name of Mineral
4 Quantity (Cbm/Volume) (to be specified).
5 Number and details of transport permit issued by Deputy Director of Geology and Mining indicating payment of royalty/seigniorage fee on mineral being transported.
Transport permit No.:
Date:
No. of transit pass issued:
Sl. No. From .. To ..
Signature and Seal of Assistant/Deputy Director.
TO BE FILLED UP AT THE TIME OF DESPATCH OF MINERALS FROM THE STOCKYARD
6. (a) Date and time of Despatch .. Date: Time:
(b) Name and address of Person who purchased the mineral from the registree:
(c) Destination to which mineral is being transported..
(d) Approximate distance to the destination and route..
(e) Expected time to reach the destination..
(f) Mode of transport..
(g) Carrier Registration No. ..
(h) Name of vehicle driver. ..
Signature of Driver
with date.
Signature of registree
with date.
Notes:- (1) No over writing should be done
(2) The original copy and the book has to be returned to the concerned authority after the book is exhausted.
(3) The vehicle driver shall carry two copies of the transit pass during transit.
31. Therefore, if sand or any other mineral, as defined under the Mining Laws, are transported, it requires transport permits, issued by the Mineral Dealer or the Registree, under the Prevention Rules, 2011. The purchasers have to prove that minerals have been purchased and transported, in accordance with Mining Laws, particularly, the Prevention Rules, 2011.
32. Therefore, if sand is used as a component for manufacture of flyash brick or hollow brick, it is the duty of the authorities under the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder, to verify, as to whether, the abovesaid components are procured under valid purchase bills, transport bills, issued by the competent authorities and whether the mineral dealer, registree, under the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers'' Rules, 2011, has sold and transported the mineral, sand/stone dust, under proper transport permits, or transit passes. If, on ascertaining the abovesaid aspects, the authorities find that mineral sand/stone dust used in the process of manufacturing the products, has not been obtained by the petitioner, in accordance with law, then the authorities under the Mining Laws or the Police shall not permit transportation of any manufactured products.
33. It is made clear that if the manufacturer is not able to produce any acceptable evidence, to satisfy the above, the District Collector, Coimbatore District and the Superintendent of Police, Coimbatore District, are directed to take appropriate action to enforce the penal provisions of the Mining Laws, against the seller, supplier, transporter or distributor of the minerals, viz., sand/stone dust. The penal provisions have to be enforced strictly in letter and spirit, against the manufacturer and the seller of the mineral, if the procurement of the mineral, transportation, is sought to be escaped, indirectly in the name of manufacturing hollow bricks/fly ash bricks.
34. It is well known that under the taxing statutes, when vehicles carry goods, to any other place, outside the State, the owner or any other person, in charge of such goods vehicle, shall obtain a transit pass in the prescribed form and in the prescribed manner, from the competent authority and shall produce the same, to the person in charge of the check post or barrier, before the exit of the goods vehicle from the State. In the case on hand, the petitioner wants to transport Dry Mortar Mix, hollow bricks/fly ash bricks. The requirement for production of such transit passes, issued by the competent authorities, is to satisfy that the goods transported correspond to the declaration made by the manufacturer, seller or the transporter, as the case may be.
35. From the counter affidavit filed by the Additional Secretary to Government, Industries Department, Chennai, it is stated that there is no ban, as on date, to transport dry mortar mix, fly ash bricks, to the State of Kerala and having regard to the intention behind the prohibition of transportation of sand, across the border of State of Tamil Nadu, it is mandatory that the District Collector, Coimbatore District and the Superintendent of Police, Coimbatore, the authorities under the Mining Laws to verify all the details, stated supra and if the petitioner substantiates that there is no illegality in the procurement of sand and other materials, used for the purpose of manufacture of dry mortar mix or fly ash bricks, issue appropriate instructions to the subordinates to permit transportation of the above, subject of course, to the provisions of the Central Sales Tax Act and the Rules framed thereunder. The writ petition is disposed of, with the above directions. No costs. Consequently, connected Miscellaneous Petition is also closed.
