(Per : MR.JUSTICE D.H.WAGHELA)

1. By consent and at the request of learned counsel on both sides, both the petitions are admitted and heard for final disposal. Proposed amendments of the petitions as per the draft amendment are allowed.

In SCA No.6204 of 2010, the petitioner has been awarded contract for one year to extract, collect, gather and remove ordinary sand from the river Tapi from certain area at village Amboli, taluka Kamrej, Surat. The petitioner was the highest bidder at Rs.3,03,00,000/-against the upset price fixed at Rs.25,20,000/-. After the agreement dated 11.01.2010 between the petitioner and the Government of Gujarat, he commenced excavation of sand, a part of which was subjected to further processing by addition of fly-ash and the other part was sold as sand out of State.

In SCA No.7321 of 2010, ten petitioners are in the business of processing ordinary river sand after buying it from lease holders. They process the sand by way of washing, cleaning and mixing fly-ash to convert it into IS-Zone-2-Sand and sell such sand in 50 kg. bags under a brand name. They are supplying such sand to builders of the State of Maharashtra and are stated to be paying VAT as well as CST, having also necessary registration therefor.

As Against the contention of the petitioner that after processing, mixing with fly-ash and packing, the sand became a sand product, it is averred by the Under Secretary, Industries and Mines Department of the State Government, that addition of any inert material does not change the characteristics or the nature of the sand and the spectrography analysis and chemical analysis of the product clearly suggested that the petitioner's product was nothing but black coloured sand.

1.1 Initially, both the petitions were directed against Resolution No. GMR-102010-1-S-CHH dated 04.05.2010 whereby all lease holders, stockists, traders and exporters were prohibited from exporting ordinary sand excavated from the State either to other States or other countries, by transporting such sand outside the State or the country. During pendency of the first petition, Industries and Mines Department of the Government of Gujarat has, in purported exercise of powers under section 15 read with section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957 (“the Act for short), issued notification dated 11.06.2010 to further amend the Gujarat Minor Mineral Rules, 1966 by making the Gujarat Minor Mineral (Amendment) Rules, 2010, so as to insert, with immediate effect, Rule 44-BB, which reads as under:

Rule 44 BB - 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 authorized 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.”

By way of new Rules made in exercise of the powers conferred by section 15 of the Act, the Government of Gujarat has enacted and notified on 26.08.2010 the Gujarat Minor Mineral Concession Rules, 2010 so as to repeal the Gujarat Minor Mineral Rules, 1966 and, inter alia, provide for in Rule 71 as under:

“Rule 71 .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 authorized 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.”

The aforesaid notification dated 04.05.2010, Rule 44-BB newly inserted in the Gujarat Minor Mineral Rules, 1966 and the aforesaid new Rule 71, the challenge to which was added by amendments which are allowed, are under challenge in both the petitions.

2. The factual background for issuing the impugned resolution and amending the rules to prevent movement of s