ORDER
B.S. Patil, J.
1. The grievance made by the petitioners in these writ petitions are similar. Therefore, they are clubbed, heard together and are disposed of by this common order.
2. In W.P. No. 38007/2009. petitioner is carrying on sand quarrying operations in D.K. District. He had filed an application before respondent No. 3 - Deputy Director of Mines & Geology, Mangalore, seeking grant of quarrying permit for extraction of ordinary sand from Sy. No. 154-P1 of Aituru village, Puttur Taluk of Dakshina Kannada District. Respondent No. 3 granted quarrying permit vide order dated 27.10.2009 for a period of 90 days permitting him to extract and transport ordinary sand from the said land situated in Kumaradhara river bed. Royalty of Rs. 6,000/- has been collected from the petitioner. Quarrying permit issued is produced at Annexure-A. The quarrying permit granted was valid upto 26.01.2010.
3. The grievance of the petitioner is that mineral dispatch permit to transport the extracted ordinary sand is granted imposing a condition that the permit was not valid for transporting to State of Kerala. This condition is imposed on the ground that the State Government has passed an order dated 28.08.2009 imposing prohibition of transportation of ordinary sand outside the State. The said Government Order is produced at Annexure-D. Aggrieved by the same, he has filed this writ petition challenging the Government Order taking up various legal contentions.
4. In W.P. Nos. 66731/2009 & 66809/2009, the two petitioners have filed a joint writ petition contending that both of them have secured necessary permission for quarrying sand from the Department of Mines and Geology, Karwar, on 10.09.2009 and 05.09.2009, respectively. It is their contention that the distance between Karwar and Bangalore is about 600 Kms. They have engaged several employees on temporary basis in the extraction and transportation of sand and the petitioners eke out their livelihood from the business they carry on. It is their grievance that the ban imposed for transportation and sale of sand in the neighbouring State has resulted in serious loss and prejudice to their interest. They have urged that the cost of ordinary sand per load is Rs. 1,580/- and if they are made to transport the sand to Bangalore, the cost of transportation itself will work out to Rs. 11,000/-, whereas the distance between the place of extraction and the collection centre at Margoa is only 2 to 2 hours journey and therefore by imposing the ban, the right of the petitioners to carry on the trade and business freely has been seriously affected. It is also contended that ordinary sand is supplied to Bangalore from the neighbouring districts such as Kolar, Chikkaballapur, Ramanagar, Tumkur, Mysore, Mandya, Chamarajanagar, Hassan, Bangalore Rural and Bangalore, and the present ban imposed for transporting ordinaiy sand from other Districts other than the one mentioned above is illegal and contrary to law.
5. Learned Senior Counsel Sri Jayakumar S. Patil appearing for the petitioners in W.P. Nos. 66731/2009 & 66809/2009 and learned Counsel Sri K.N.Phanindra appearing for the petitioner in W.P. No. 38007/2009 have canvassed several legal contentions.
6. On behalf of the State, learned Advocate General Sri Ashok Haranahalli has supported the impugned Government Order dated 28.08.2009.
7. The impugned Government Order has banned transportation of ordinary sand from Karnataka to other States for the reasons stated in the preamble to the Government Order. The reasons assigned for imposition of such a ban are as follows:
(a) In Bangalore Metropolitan City several constructions are under progress, for which sand is required. The districts from which sand is supplied to Bangalore are Kolar, Chikkaballapur, Ramanagar, Tumkur, Mysore, Mandya, Chamarajanagar, Hassan, Bangalore Rural and Bangalore Urban. In these places, several objections arc raised by the public and the environmentalists for extraction of sand and for transporting the same. As a result, sand quarrying and transportation, was banned In some of these districts. In the meanwhile, in the wake of the strike resorted to by truck owners with effect from 19.09.2008, for a period of six months, method of issuing temporary permits is brought into force and the same was extended for a further period of six months;
(b) That for the purpose of developmental works in the State and for implementation of the same, there is shortage of ordinary sand. In order to remove this scarcity, the Deputy Commissioners of all the Districts are directed by order dated 03.06.2009 to reserve certain specified sand blocks necessary for developmental works in favour of Public Works Department.
(c) In the border districts, like Dakshina Kaunada, Kodagu, Mysore, Chamarajanagar, Belgaum, Gulbarga and other districts, it is noticed that ordinary sand is transported to outside States and the public have also complained in this regard. As the State is facing shortage of ordinary sand for the purpose of on going developmental works and as the States of Tamil Nadu, Andhra Pradesh and Kerala have banned transportation of ordinary sand outside their respective States, a suggestion is made by the Director of Mines and Geology on 24.07.2009 to impose similar ban on the transportation of ordinary sand outside the State.
8. The main contention of the learned Counsel for the petitioners is that the impugned Government Order is in violation of the fundamental right of the petitioners under Article 19(1)(g) of the Constitution of India. It is their contention that in order to cater to the needs of the developmental activities in Bangalore, the impugned notification is issued banning transportation of ordinary sand from the various districts including border districts which are situated several hundred kilometres away from the Bangalore City. Therefore, restriction imposed is wholly arbitrary and illegal. It is further contended that the Government Order violates Article 301 of the Constitution of India as it imposes a ban on the transportation of sand from Karnataka State to any other State in the country and that the State Government does not have any such power or authority to impose such a ban. It is also contended that neither the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the Act', for short) nor the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (hereinafter referred to as 'the Rules', for short), confer any power on the State Government to impose ban on the transportation or sale of minerals outside the State.
9. In support of the aforesaid contentions, learned Counsel for the petitioners have relied upon the following judgments:
(i) State of Mysore v. H. Sanjeeviah : AIR 1967 SC 1189;
(ii) Oudh Sugar Mills Ltd. v. Union of India And Ors. : AIR 1970 SC 1070;
(iii) The India Cement Ltd. v. State of Tamil Nadu : AIR 1990 SC 85.
10. Learned Advocate General has emphasized the acute shortage of ordinary sand faced by the State and the need to conserve the same. He has further emphasized the fact that the lands in question over which the quarrying permit is granted belongs to the State. He also draws the attention of the Court to Condition No. 18 imposed in the quarrying permit granted in favour of the petitioners in W.P. Nos. 66731/2009 & 66809/2009, wherein it is stated that the permit is issued to quarry ordinary sand to transport the same for local use. Inviting the attention of the Court to Rule 31(2) of the Rules, he contends that the quarrying lease may contain such other conditions as the Competent Authority may deem necessary in the interest of maintaining the local environment, habitat of surrounding area leased and in the interest of conservation of minerals. He has placed strong reliance on the judgment of the Apex Court in the case of State of Assam and Ors. v. Om Prakash Mehta and Ors. : AIR 1973 SC 678 (para 9); and State of Tamil Nadu v. Hind Stone etc. : AIR 1981 SC 711 (para 6) in support of his contention that the State has got such a power to impose such restriction and there is no vested right in the petitioners to claim grant or renewal. He submits that the executive order is traceable to Rule 31 and therefore the contention urged by the petitioners that it offends Article 301 is not tenable in law. He also draws the attention of the Court to Rule 7 of the Rules to contend that the competent authority has got power to specify additional conditions apart from general conditions as enumerated in Rule 6 of the Rules.
11. In the light of the respective legal contentions urged, the points that arise for consideration are,
(i) Whether the Government Order issued by the State Government is violative of the fundamental right under Article 19(1)(g) and/or of the provisions contained under Article 301 & 304 of the Constitution of India?
(ii) Whether the impugned order is otherwise sustainable in law?
12. As can be seen from the Government Order and the reasons mentioned for imposing the ban, the main concern of the State Government is the acute shortage of ordinary sand for the developmental activities throughout the State apart from Bangalore City, where large number of constructions are undertaken. This concern also stems out of the ban imposed by the neighbouring States Kerala, Tamil Nadu and Andhra Pradesh for transportation of sand outside their respective States. Therefore, if the State Government has kept in mind as a prime concern, the requirement of the developmental activities in the State and the acute shortage of ordinary sand to implement such developmental projects, it cannot be said that the Government has acted in an arbitrary or unreasonable manner by taking into consideration extraneous factors.
13. As can be seen from the conditions imposed in the permit granted in favour of the petitioners in W.P. Nos. 66731/2009 & 66809/2009, Clause 18 makes it amply clear that the temporary permit is issued to quarry ordinary sand to transport the same for local use and not for transporting to other countries. The term 'local use' is capable of interpreting that the extracted sand has to be used in the same locality. At any rate, considering the elasticity of the expression local use' understanding its scope as 'use throughout the State' cannot be understood as impermissible. It is also not in dispute that the petitioners have obtained temporary permits on such conditions and the period of permit has since expired. Admittedly, there is no restriction for these petitioners to transport the ordinary sand extracted throughout the State of Karnataka. Since it is contended that imposition of such condition that too by way of a Government Order is outside the authority of the State Government and is violative of the provisions of the Constitution and is opposed to the provisions contained in the Act and Rules, it is necessary to examine the provisions of the Act and the Rules for this limited purpose.
14. Section 15 of the Act confers powers on the State Governments to make rules in respect of minor minerals including as regards the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed (See Section 15(1A)(d)).
15. In exercise of the powers conferred under Section 15 of the Act, the Rules are made by the Government of Karnataka. Rule 6 of the said Rules provides for imposition of certain general conditions pertaining to quarrying lease and license. Rule 7 clothes the competent authority to specify additional conditions in the quarrying lease or license as the competent authority may deem necessary. Rule 31(2) which deals with the conditions of quarrying lease states that a quarrying lease deed may contain such other conditions as the competent authority may deem necessary in the interest of maintaining the local environment, habitat of surrounding area leased and in the interest of conservation of minerals. Therefore, it is clear from the conjoint reading of Rule 7 and Rule 31(2) that necessary conditions can be imposed by the competent authority in the interest of maintaining local environment and conserving the minerals.
16. The Government Order refers to the ban imposed in some of the districts for quarrying ordinary sand on account of the objections raised by the public and environmentalists, though subsequently the same is lifted for a temporary period. The Government Order also refers to shortage of ordinary sand in the State for carrying out developmental works. If indiscriminate excavation of sand is permitted and if it is not properly diverted for ensuring its usage for the projects and works in the State, it will certainly seriously affect the public interest, at large and give a lethal blow to the conservation of such mineral, which is exhaustible. If is precisely for this reason that under Rule 7 read with Rule 31(2) of the Rules, the authorities are enjoined with power to impose such conditions. It cannot be forgotten that the quarrying permit granted is in respect of land belonging to The State Government. The land and the mineral belongs to the. Stale. The impugned Government Order only makes it specific what has been otherwise incorporated as part of the permit condition requiring the permit holders to use the sand excavated within the State and not to divert its use outside the State.
17. Learned Advocate General has rightly placed reliance on the judgment of the Apex Court in the case of State of Assam and Ors. v. Om Prakash Mehta and Ors. : AIR 1973 SC 678 as regards the following observations:.the Government like any other owner of property is entitled to choose with whom it shall deal and what sort of a contract it will enter into, but being a public authority its acts are necessarily regulated by certain rules.... No person can claim any right in any land belonging to Government or in any mines in any land belonging to Government except under and in accordance with the Act and the Rules or any right except those created or conferred by the Act. There is no question of any fundamental right in any person to claim that he should be granted any lease or any prospecting license or mining lease in any land belonging to the Government.18. In the instant case, land and the mineral belongs to the Government. There is no vested right in the petitioners apart from what flows from the permit and the provisions of the Rules and the Act. Therefore, the argument advanced based on the alleged violation of the fundamental right under Article 19(1)(g) is totally untenable.
19. In so far as the contention urged by the learned Counsel for the petitioners on the basis of freedom of trade throughout the territory of India under Article 301 and the restrictions which can only be imposed by law as provided under Article 304 by the legislature of a State, as rightly urged by the learned Advocate General Sri Ashok Haranahalli, the judgment in the case of State of Tamil Nadu v. Hind Stone etc. : AIR 1981 SC 711, is a complete answer. The Apex Court, in the said case was concerned with the validity of Rule 8C of the Tamil Nadu Minor Mineral Concession Rules, 1959, which provided for complete prohibition of quarrying black granite by private agencies and a contention was also advanced stating the Government Order dated 02.12.1977 involved a major change of policy which was a legislative function and therefore beyond the competence of a subordinate legislating body, the Apex Court repelling the said contention held that the Rule was valid. It is observed in para 9 of the said judgment as under:.Whenever there is a switch over from 'private sector' to 'public sector' it does not necessarily follow that a change of policy requiring express legislative sanction is involved. It depends on the subject and the statute. For example, if a decision is taken to impose a general and complete ban on private mining of all minor minerals, such a ban may involve the reversal of a major policy and so it may require legislative sanction. But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy. The policy of the Act remains the same and it is, as we said, the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community....20. In para 10, the Apex Court has observed that, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present. In para 11, the Apex Court has repelled the contention that the impugned Rules therein contravened Articles 301 & 304 of the Constitution. The Apex Court has categorically observed in para 11 as under:.The Mines & Minerals (Regulation & Development) Act is without doubt a regulatory measure, Parliament having enacted it for the express purpose of 'the regulation of mines and the development of minerals'. The Act and the Rules properly made thereunder are, therefore, outside the purview of Article 301. Even otherwise, Article 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of Article 301....21. In the instant case, as already adverted to herein above, the Rules framed by the State Government under Rules 7 and 31(2) of the Rules provide for imposition of conditions by the competent authority in the interest of maintaining the local environment and for conservation of minerals. By virtue of the Government Order, in view of the acute shortage of the ordinary sand in the State and in the light of the requirement of directing the sand excavated towards usage for completion of the ongoing development projects, the State Government has issued such a notification.
22. The petitioners in this writ petition have accepted the conditions of permit and are therefore liable to follow such regulatory directions issued by the Government. The power exercised by the Government having been guided by genuine considerations of public interest cannot be interfered with by this Court by taking a pedantic approach being carried away by the contentions of the petitioners such as omission of the authorities to insist for adherence for ban on transportation outside the State in the beginning.
23. The judgments relied upon by the learned Counsel for the petitioners in the case of The India Cement Ltd. v. State of Tamil Nadu AIR 1990 SC 8S (Paras 18 & 32) has no application to the facts of the case. Similarly, the judgment in the case of State of Mysore v. H. Sanjeeviah : AIR 1967 SC 1189, which pertains to the validity of the Rules regarding regulation of transit of timber, firewood, charcoal and bamboos in specified area framed under the Mysore Forest Act vis-a-vis the provisions under Articles 301 & 304 of the Constitution of India, has no application to the present case. Likewise, the judgment in the case of Oudh Sugar Mills Ltd. v. Union of India and Ors. : AIR 1970 SC 1070 relied upon by the learned Counsel for the petitioners is also of no help to the proposition canvassed by them. Accordingly, both the points are answered against the petitioners.
24. For the detailed discussion made above and the reasons stated herein above, we do not find any merit in the challenge made to the Government Order. Hence, the writ petitions are dismissed.