Judicial scrutiny

Published : Nov 07, 2003 00:00 IST

WILL the Tamil Nadu government order cancelling the sand-mining licences and taking over the quarrying operations stand the test of judicial scrutiny? A number of writ petitions have been filed in the Madras High Court challenging the October 1 government order (G.O.) These petitions question the validity of Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, framed under the Mines and Minerals (Development and Regulation) Act, 1957, a Central Act. The government introduced Rule 38-A to the Minor Mineral Concession Rules through the G.O., and it was the same G.O. that ordered the termination of all existing quarrying leases, under the newly introduced rule.

Rule 38-A reads: "Quarrying of sand by the State government - notwithstanding anything contained in these rules, or any order made or action taken thereunder or any judgment or decree or order of any court, all existing leases for quarrying sand in government lands and permissions/leases granted in ryotwari lands shall cease to be effective on and from the date of coming into force of this rule and the right to exploit sand in the State shall vest with the State government to the exclusion of others. The proportionate lease amount for the unexpired period of the lease and the unadjusted seigniorage fee, if any, will be refunded."

The new rule was challenged on the grounds that Section 4 (3) of the Mines and Minerals (Development and Regulation) Act provided that no lease shall be cancelled without notice to the lessee and according to Section 17-A of the Act no area can be reserved for exclusive exploitation by the State without prior approval by the Centre. Section 15 of the Act only empowered the government to regulate the grant of quarry leases and not to prohibit operations by private persons. The petitioners also contended that there could be no wholesale cancellation of leases on the grounds of violations of the rules by some lessees.

Petitioners argued that the State government, being a delegated authority, had no jurisdiction to frame any rule or law contrary to the 1957 Act.

The government in its counter petition disputed these contentions. Its contention was that the action was taken in the public interest, in pursuance of a court directive that a high-power committee be asked to inquire into the whole question of sand-quarrying and the government act fast on its recommendations. Advocate-General N.R. Chandran contended that the take-over of the sand-quarrying operations was like a nationalisation process and it required no individual notices. Once the government decided to exploit its minerals, it was in furtherance of the Directive Principles of State Policy, and hence no individual notice was required, argued Chandran, when Justice Govindarajan heard the petitions on October 7. Justice Govindarajan said: "By policy decision you cannot take away another person's rights... If you nationalise sand-quarrying you have to pay compensation.

On October 8, Justice Govindarajan, in an interim order, stayed the operation of the G.O. that empowered the government to take over sand-quarrying, but in a few hours' time the First Bench, comprising Chief Justice B. Subhashan Reddy and Justice A. Kulasekaran, heard an appeal from the government and restrained both parties from exploiting the mineral. The quarrying operations have thus been stayed in 160 of the 239 sites allotted for quarrying.

Before granting the interim stay Justice Govindarajan expressed his reservations about the state's powers to insert rules terminating the leases. However, Chief Justice Subhashan Reddy, while hearing the appeal, observed that the reasons the government gave for issuing the October 1 G.O. were correct and the objective was laudable. "It is your own doing," he said, blaming the "black sheep" among the lessees.

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