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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.02.2020 CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA W.P(MD)NOs.27081 of 2019,17880,20279,20280 OF 2017 and 818 of 2020 and W.M.P(MD)Nos.14405 to 14407,15330,16524,16525 of 2017, 23418 of 2019 and 598 of 2020 W.P(MD)NOs.27081 of 2019 and 818 of 2020
1.P.Madhavadas :Petitioner in W.P(MD)No.27081 of 2019
2.V.Thangaraj :Petitioner in W.P(MD)No.818 of 2020 vs.
The District Collector, Tirunelveli District, Tirunelveli. : Respondent in both Writ Petitions.
W.P(MD)No.17880 of 2017 Virudhunagar District Quarry Owners Welfare Association (Reg.No.57 of 2014), represented by its Secretary A.Narayana Perumalsamy. :Petitioner .vs.
1.The Principal Secretary to Government, Industries Department, Government of Tamil Nadu, Fort St.George, Chennai – 600 009.
2.The Commissioner of Geology and Mining, Thiru.Vi.Ka Industrial Estate, Guindy, Chennai -32.
3.The District Collector, Virudhunagar District. :Respondents W.P(MD)Nos.20279 and 20280 of 2017
1.M/s.Sqny Granites represented by its Partner Mr.P.Karvannan
74-A,Velayutham Road, Sivakasi :Petitioner in W.P(MD)No.20279 of 2017
2.M/s.Chindia Granites(P)Limited, represented by its Director Mr.P.Karvannan, 74-A, Velayutham Road, Sivakasi :Petitioner in W.P(MD)No.20280 of 2017 .vs.
1.The Principal Secretary to Government, Industries Department, Government of Tamil Nadu, Fort St.George, Chennai -5.
2.The Commissioner of Geology and Mining, Thiru.Vi.Ka,Industrial Estate, Guindy, Chennai-32.
3.The District Mineral Foundation, represented by its Chairman, the District Collector, District Collectorate Campus Virudhunagar District. :Respondents in W.P(MD)Nos.20279 and 20280 of 2017 PRAYER in W.P(MD)No.27081 of 2019: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records relating to the impugned Memorandum of the respondent bearing Na.Ka.No.M1/50935/R.G-11/2017, dated 30.12.2017 with reference to the lease granted to the Petitioner in Poramboke land (stone quarry) bearing S.F.No.907, admeasuring 1.49.5 hectares in Pazhavur Part-I Village, Radhapuram Taluk, Tirunelveli District and to quash the same and to direct the respondent to issue the Petitioner No Mining Due Certificate, as requested in the representation dated 9.12.2019 within the time prescribed by this Court.
PRAYER in W.P(MD)No.17880 of 2017: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order of the first respondent in G.O.Ms.No.57, Industries(MMD.1), dated 19.5.2017 insofar as rules 8,9,10 and 11 are concerned published in Tamil Nadu Government Gazette Extraordinary Part-III Section 1(a), dated 19.5.2017 and the impugned G.O(Ms)No.90, Industries(MMD.1) Department, datged 27.7.2017 and to quash the same and consequently to forbear the respondents from in any way taking coercive steps against the members of the Petitioner Association for recovery of the alleged contribution to the District Mineral Foundation.
PRAYER in W.P(MD)No.20279 of 2019: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records on the file of the third respondent in Na.Ka.No.KV-1/588/2017-67, dated 11.09.2017(despatched on 13.10.2017 and received by the Petitioner on 14.10.2017) following the orders of the first respondent in G.O.Ms.No.57, Industries(MMD.1),dated 19.5.2017 insofar as the rules 8,9,10 and 11 are concerned published in Tamil Nadu Government Gazette Extraordinary Part-III Sec,1(a), dated 19.5.2017 and G.O.Ms.No.90, Industries(MMD-1)Department, dated 27.7.2017 and to quash the same and consequently to direct the respondents not to take any coercive steps against the Petitioner for recovery of the alleged contribution to the District Mineral Foundation.
PRAYER in W.P(MD)No.20280 of 2019: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records on the file of the third respondent in Na.Ka.No.KV-1/588/2017-61, dated 11.09.2017(despatched on 12.10.2017 and received by the Petitioner on 13.10.2017) following the orders of the first respondent in G.O.Ms.No.57, Industries(MMD.1),dated 19.5.2017 insofar as the rules 8,9,10 and 11 are concerned published in Tamil Nadu Government Gazette Extraordinary Part-III Sec,1(a), dated 19.5.2017 and G.O.Ms.No.90, Industries(MMD-1)Department, dated 27.7.2017 and to quash the same and consequently to direct the respondents not to take any coercive steps against the Petitioner for recovery of the alleged contribution to the District Mineral Foundation.
PRAYER in W.P(MD)No.818 of 2020: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records relating to the impugned Memorandum of the respondent bearing Na.Ka.No.M1/50935/R.P-88/2017, dated 25.1.2018 with reference to the lease granted to the Petitioner in patta land (stone quarry) bearing S.F.Nos.754/21, 754/22 and 754/23, admeasuring
0.83.5hectares in Keelakadayam Part-I Village, Ambasamudram Taluk, Tirunelveli District and to quash the same. W.P(MD)Nos.27081 of 2019 and 818 of 2020 For Petitioner : Mr.V.Sanjeevi For Respondent : Mr.M.Rajarajan Govt.Advocate W.P(MD)No.17880 of 2017 For Petitioner : Mr.Veera Kathiravan Senior Counsel for M/s.Veera Associates For Respondents : Mr.J.Padmavathi Devi Special Government Pleader W.P(MD)Nos.20279 and 20280 of 2017 For Petitioner :Mr.A.Chandrasekaran in both W.Ps For Respondents :Mr.J.Padmavathi Devi 1 to 3 in both W.Ps' Special Govt. Pleader
COMMON ORDER
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In all these Writ Petitions, the challenge is to the impugned order passed by the District Collector demanding District Mineral Fund with retrospective effect.
2.It is stated that all the Petitioners are dealing with quarrying of rough stones/Jally, which are the minor minerals as prescribed in the Mines and Minerals (Development and Regulation) Act, 1957 (in short “MMDR Act”) and their lease was also governed by the Tamil Nadu Minor Mineral Concession Rules, 1959. Section 15 of the MMDR Act gives power to the State Government to make Rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for the purposes connected therewith. There were several amendments to the MMDR Act. The amendments to Section 9B, Sub-Clauses (qqa) to (qqk) to Sub-section (2) of Section 13, Section 15(4) and Section 15-A of the MMDR Act, 1957 were made with effect from 12.01.2015. It is stated that Section 9B contemplates the establishment of a Trust to be called as the District Mineral Foundation, the said provision is only applicable to the major minerals and not for minor minerals. Section 15-A of the MMDR Act provides that the State Government may prescribe the payment by all holders of concessions related to minor minerals to the District Mineral Foundation of the District, in which the mining operations are carried on. The whole of Section 15 deals with the power of the State Government to make rules in respect of minor minerals. As per Section 15-A and Section 15(4) of the MMDR Act, as amended, the State Government is empowered to frame Regulations/Rules for the District Mineral Foundation for the minor minerals.
3. It is pointed out by the learned counsel appearing for the Petitioners that though the amended Act came into force only on 12.01.2015, the State had not framed any Regulations/Rules for the purpose of levy of contribution to the said Trust till 19.5.2017. Thereafter, the Government of Tamil Nadu framed Rules called Tamil Nadu District Mineral Foundation Rules, 2017 in G.O.Ms.No. 57, Industries(MMD.1), dated 19.5.2017, subsequently amended by another Government Order in G.O(Ms)No.90, Industries (MMD-1) Department, dated 27.7.2017. As per the amended rule, the holder of a mining lease in respect of whom the lease is granted before 12.1.2015, is liable to pay the contribution to the said Foundation in addition to the seigniorage fee in favour of the Trust at the rate of 30% of the seigniorage fee and the mining lease holder, in respect of whom the lease is granted on or after 12.1.2015, is liable to pay 10% of the seigniorage fees. It is urged by the learned counsel for the Petitioners that the respondent is not vested with any power to frame the rules with retrospective obligation. It is contended that the petitioners are liable to pay the said fee only with prospective effect from the date of rule framed, establishing the fund and not retrospectively.
4.A similar question came up for consideration before the Division Bench of this Court in the case of Namakkal District Stone Crusher, Owners Association, Reg.No.67/2004, represented by its Secretary P.Mani Vs. The State of Tamil Nadu, represented by its Secretary to Government, Industries Department, Fort St. George, Chennai-9 and others, (2019) 8 MLJ 181. The Division Bench, after discussing the powers and consensus of the Governing council, powers of the Managing Committee, the contribution of trust fund, collection and monitoring of the amount payable to the Trust and interest, penalty and operation of the Trust fund etc., and following the judgment of the Hon'ble Apex Court in Federation of Indian Mineral Industries V. Union of India and Another, (2017) 16 SCC 186, held that the retrospective levy of the contribution to the said Trust cannot be demanded. The Division Bench has extensively discussed about the powers of the Special Legislative Authority in framing rules where retrospective
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