D.Sivakumar v. The Government of Tamil Nadu

For Petitioner: Mr.V.T.Gopalan Senior Counsel for Mr.K.Ramakrishna ReddyFor Respondents: Mr.P.S.Raman Additional Advocate General for Mr.S.M.Hasan Fizal Government Advocate* * * * *O R D E RM.M.SUNDRESH.,J.Heard the learned senior counsel for the petitioners andthe learned Additional Advocate General for respondents.2.In view of the common issues involved in the two writpetitions and also in view of the fact identical prayers have beensought for on same grounds a common order is passed in the writpetitions. These two writ petitions have been filed seeking a writof declaration, declaring Rule 38(B) of the Tamil Nadu MinorMinerals Concession Rules, 1959, which is introduced by way of aGovernment Order in G.O.Ms.No.158 Industries (MMC I) Department,dated 25.08.2008 as illegal, ultra vires, Section 15 of the Minorand Minerals (Development and Regulation) Act, 1957 and Article14, 19(1)(g) and 301 to 304 of the Constitution of India.3.Rule 38(B) of the Tamil Nadu Minor Minerals ConcessionRules, 1959 is as follows:"38-B Transport of Sand outside the State not to bemade:- No transport of sand covered under rule 38-A of these rules shall be made across the border ofother States."4.The brief facts of the case are as follows:An order was passed by a Division Bench of the Hon'bleHigh Court dated 26.07.2002 directing the State Government toconstitute a Committee of experts consisting of Geologists,Environmentalists and Scientists to study the river and riverbedsin the State with reference to the impact of the sand quarrying.The Hon'ble High Court directed the said Committee to submit a https://hcservices.ecourts.gov.in/hcservices/ report and further directed the Government to take necessary stepsto arrest the exploitation and improve the situation. Whilepassing the order this Court has observed as follows:"rivers are being plundered by a powerful mafiacontrolling the sand mining business. The illegaltrade is driven by the unholy nexus betweencontractors, politicians, trade union leaders,panchayat and revenue officials and corruptpolicemen, making a mockery of the regulationsimposed by the Government. Contractors who quotemarginal amounts for auction rights go on to make akilling, extracting many time the permitted amountof sand as enforcement agencies turn a blind eye"In compliance with the directions of the Hon'ble HighCourt, a six member High Level Committee was constituted by theGovernment in G.O.Ms.No.(2D) No.46, Industries Department, dated25.09.2002. The Committee of the experts in turn gave their reportpointing out that illicit, indiscriminate and haphazard sandmining has led to deepening of the river beds, widening of therivers, damage to civil structures, depletion of ground watertable, degradation of ground quality, damages to the rivers systemand reduction of bio-diversity.Based upon the recommendation of the High LevelCommittee, the Government of Tamil Nadu introduced Rule 38-A ofthe Tamil Nadu Minor Minerals Concession Rules, 1959 by way ofG.O.Ms.No.95, Industries Department, dated 01.10.2003. Theobjective of the said Government order was to eliminateindiscriminate and unscientific sand quarrying and also to preventfurther damage as noted by the High Level Committee. Accordingly,in the said rule the right to exploit sand in the State of TamilNadu became vested with the Government through the Public WorksDepartment.5.The above said rule was challenged by lease holders ina batch of writ petitions and the Hon'ble High Court in (2004) 4MLJ 418 (STATE OF TAMIL NADU v. P.KRISHNAMOORTHY) upheld thevalidity of the said rule. Not being satisfied with the same, thematter was taken to the Hon'ble Supreme Court and the Hon'bleSupreme Court has also upheld the validity of the Rule in (2006) 4SCC 517 (STATE OF TAMIL NADU v. P.KRISHNAMURTHY).6.Thereafter, the Government of Tamil Nadu introducedRule 38-B of the Tamil Nadu Minor Minerals Concession Rules, 1959purporting to exercise the power under Section 15(1) of the Minesand Minerals (Development and Regulation) Act, 1957. The validityof the said rule is put in issue in the writ petitions. The writ https://hcservices.ecourts.gov.in/hcservices/ petitions have been filed by the petitioners who are registereddealer and civil contractor respectively challenging the said rule38-B. The writ petitioners sought for a prayer to declare the saidrule 38-B as unconstitutional by raising several grounds.7.Submissions on behalf of the petitioners:Shri.V.T.Gopalan, learned senior counsel appearing onbehalf of the petitioners raised several contentions in support ofthe prayer to declare rule 38-B as unconstitutional and ultravires the Parent Act. They are as follows:(i) The impugned rule 38-B is unconstitutional, sincethe same is in contravention of Article 301 and 304 of theConstitution of India. In other words rule 38-B does not have thelegislative competence and sanction of the Constitution.(ii) Rule 38 is liable to be declared as ultra vires theParent Act namely, the Mines and Minerals (Development andRegulation) Act, 1957. Section 15 of the said Act does not empoweror authorise the State Government to pass such a rule therebyprohibiting the transport of sand outside the State of Tamil Nadu.(iii) Rule 38-B is liable to be set aside since evenSection 23-C of the Mines and Minerals (Development andRegulation) Act, 1957, does not authorise such a rule making powerresulting in the prevention and prohibition of transport of sandoutside the State.(iv) As per the principle of ejusdem generis, the priorword "illegal mining" should be taken into consideration forinterpreting and construing the subsequent words "transportationand storage of minerals". The learned senior counsel appearing onbehalf of the petitioners has submitted that Section 23-C is onlyapplicable in case of preventing illegal mining, illegaltransportation and storage of illegally mined minerals andtherefore, rule 38-B is liable to be declared as ultra vires.(v) The word regulation as mentioned in Section 23-Ccannot be construed as prohibition and there cannot be anyprohibition in view of the protection available under Article 301and without following the procedure contemplated under Article 304of the Constitution of India.8.The submissions of Shri.P.S.Raman, learned AdditionalAdvocate General are as follows:(a) The contention of the petitioners that rule 38-B isunconstitutional in view of the Articles 301 and 304 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India has no legal basis since Article 301 issubject to Articles 302 to 304 and in any case they would not beapplicable in the present case since the impugned rule has beenpassed by deriving power under the Central Act namely, the Minesand Minerals (Development and Regulation) Act, 1957.(b) Even though rule 38-B has been introducedpurportedly deriving power under Section 15 of the Parent Act, thepower can be traced in the plenary or enabling provisions.Further, in view of the power conferred on the States to makerules for preventing transportation under Section 23-C of the Actthere is no basis that rule 38-B is in violation of Articles 301and 304 of the Constitution of India.(c) The word regulation would necessarily meanprohibition and therefore the impugned rule is valid in law. (d) The principle of ejusdem generis would not applywhen the words are very clear and there is no ambiguity in Section23-C. Therefore, the principle of ejusdem generis is notapplicable in the present case and the said principle will have tobe made applicable always with caution.(e) The overwhelming public interest as well as theenvironmental issue also will have to be taken into considerationsince the rule has been introduced in order to preventindiscriminate sand mining.9.We have considered the submissions made on behalf ofthe learned senior counsel appearing on behalf of the petitionersand the learned Additional Advocate General appearing on behalf ofthe respondents.10. Whether Rule 38(B) is Violative of Article 301 and 304 of theConstitution:Article 301 and 304 of the Constitution of India areextracted hereunder:"301.Freedom of trade, commerce andintercourse – Subject to the other provisions ofthis Part, trade, commerce and intercoursethroughout the territory of India shall be free.304.Restrictions on trade, commerce andintercourse among States – Notwithstanding anythingin article 301 or article 303, the Legislature of aState may by law -(a) impose on goods imported from other States https://hcservices.ecourts.gov.in/hcservices/ (or the Union territories) any tax to which similargoods manufactured or produced in that State aresubject, so, however, as not to discriminatebetween goods so imported and goods so manufacturedor produced; and(b) impose such reasonable restrictions on thefreedom of trade, commerce or intercourse with orwithin that State as may be required in the publicinterest:Provided that no Bill or amendment for thepurpose of clause (b) shall be introduced or movedin the Legislature of a State without the previoussanction of the President."On a reading of Article 301 of the Constitution of Indiait is clear that trade, commerce and intercourse throughout Indiashall be free. Similarly, Article 304 of the Constitution grantspower to the State Legislature to make law with regard torestrictions on trade, commerce and intercourse among States. TheState legislature cannot introduce any bill regarding the abovesaid subjects without the previous sanction of the president.Hence it is clear that the protection given under Article 301 ofthe constitution is subject to Article 304, provided the law hasbeen made by the State Legislature by complying with the procedurecontemplated under the proviso to Article 304. We may also notethat Article 302 provides for making of the law by the parliamentto impose restrictions on trade, commerce and intercourse.Shri.V.T.Gopalan has contended that the prohibition madeunder Rule 38(B) of the Tamil Nadu Minor Minerals ConcessionRules, 1959 is in violation Article 301 since it infringes one'sfreedom of Trade and the said rule is also in violation of Article304 since no prior sanction from the President of India has beenobtained.We are not in agreement with the submission made by thelearned counsel for the simple reason that the rule 38(B) has beenintroduced by the State as the delegate of the Parliament tocarryout the purpose of Section 23-C of the Parent Act. In otherwords the contention raised by Shri.V.T.Gopalan does not arise forconsideration, since rule 38(B) has been introduced not derivingthe power under Article 304 of the Constitution of India but underSection 23-C of the Mines and Minerals (Development andRegulation) Act, 1957.The said issue has been considered by the Hon'bleSupreme Court in (1997) 3 SCC 665 (STATE OF TRIPURA v. SUDHIRRANJAN NATH). It is held therein in paragraph 21 of the saidjudgment that the impugned rule having been made by the State asthe delegate of parliament to carry out the purpose of the Act https://hcservices.ecourts.gov.in/hcservices/ cannot be held to be in contravention of Article 301 of theConstitution. The Hon'ble Supreme Court has further held that insuch a situation the compliance of the procedure contemplatedunder Article 304-B of the Constitution does not arise forconsideration. Further the judgment relied on by Shri.V.T.Gopalanin (2006) 7 SCC 241 (JINDAL STAINLESS LTD., v. STATE OF HARYANA)does not have any application to the present case since the issueinvolved therein was as to whether the Compensatory Tax imposed bythe State is valid or not.Hence we hold that the impugned Rule 38 is notunconstitutional being violative of Article 301 and 304 of theConstitution of India.11. Whether Rule 38(B) is in Violation of Section 15 of the Minesand Minerals (Development and Regulation) Act, 1957:The learned senior counsel has contended that inasmuchas in the absence of any power under the Parent Act, the impugnedrule is not good in law. In support of his contention, the learnedsenior counsel has relied upon AIR 2004 Madras 151(K.P.ENTERPRISES v. DISTRICT COLLECTOR, SALEM); AIR 1995 SCC 858(STATE OF TAMIL NADU v. M.P.P.KAVERY CHETTY); (2008) 3 SCC 735(K.T.VARGHESE v. STATE OF KERALA), to contend that under Section15(1) of the MMDR Act, 1957, there is no power to control themovement of any minerals after the sale. In the judgment reported in AIR 2004 MADRAS 151(K.P.ENTERPRISES v. DISTRICT COLLECTOR, SALEM), unfortunatelySection 23-C has not been brought to the notice of this Court. Itis well settled principle of law that when a particular point oflaw is not consciously determined by the Court, that does not formpart of ratio decidendi. It is further to be noted that a judgmentrendered without reference to the statutory provisions cannot beconsidered as a ratio decidendi and in any case such a judgmentwill not be binding when an issue is before the Division Bench. Inthis regard, we may refer the judgment reported in (2000) 5 SCC488 (ARNIT DAS v. STTE OF BIHAR), wherein the Hon'ble SupremeCourt has held that a decision which is not expressed, notaccompanied by reason and not proceeding on a consciousconsideration of an issue cannot deem to be a law declared and thesame is not the ratio decidendi. Similarly, in (2006) 1 MLJ 192(TVL.N.V.S.AGRO DERIVATIVES v. COMMERICIAL TAX OFFICER, THENI),the Hon'ble High Court has also taken the same view. In so far asthe judgment reported in (2008) 3 SCC 735 (K.T.VARGHESE v. STATEOF KERALA) is concerned, the facts of the said judgment aretotally different from the present case. The said judgmentpertains to the transaction of the year 1997-98 during that timeSection 23-C was not in the statute book. So is the other judgment https://hcservices.ecourts.gov.in/hcservices/ in AIR 1995 SCC 858 (STATE OF TAMIL NADU v. M.P.P.KAVERY CHETTY)which was also rendered prior to coming into existence of Section23-C of the Act. Hence these decisions are not favouring the caseof the petitioners in any case. 12. Application of Section 23-CAccording to Shri.V.T.Gopalan, Section 23-C is onlymeant for illegal mining, illegal transportation and illegalstorage of minerals. A perusal of Section 23-C would clearly showthat the State Government could make rule preventing illegalmining, transportation and storage of minerals. The wordstransportation and storage are distinct and different forming aseparate class or category than the word illegal mining. We are ofthe opinion that such an interpretation as canvassed byShri.V.T.Gopalan cannot be given since the plain meaning should begiven to the words transportation and storage. In this connection,Shri.P.S.Raman has relied upon the judgment of the Division Benchof the Andhra Pradesh High Court reported in AIR 2004 ANDHRAPRADESH 234 (C.NARAYANA REDDY v. COMMISSIONER OF PANCHAYAT RAJ)wherein the similar provision like rule 38-B was challenged beforethe Division Bench of the Andhra Pradesh High Court. In the saidcase rule 9-W of Andhra Pradesh Mineral Concessions Rules whichprohibits movement of sand across the border to the neighbouringState was challenged. The Division Bench of the Andhra PradeshHigh Court has upheld the rule by tracing the power under Section23-C interpreting the words illicit mining, transportation andstorage as distinct and different. We are in complete agreementwith the said judgment. Further Section 4(1)(A) of MMDR Act, 1957 says asfollows:"No person shall transport or store or cause to betransported or stored any mineral otherwise than inaccordance with the provisions of this Act and therules made thereunder."Section 4 of the said Act provides for prospecting ormining operation to be licensed or lease. Therefore, it is veryclear that power has been conferred on the authorisers to regulatethe transport and storage of minerals. We are of the opinion thatwhen in a case of a prospecting or mining operation given under alicense or lease such a restriction could be made, Section 23-Cshould necessarily be construed giving power to the StateGovernment to control and regulate the movement of the minerals.We are also in an agreement with the contention raisedby the learned Additional Advocate General appearing on behalf of https://hcservices.ecourts.gov.in/hcservices/ the respondents that even if the statute does not give the powerfor the Government to make rule the power can be traced to theenabling provision. Since Section 23-C provides for the rulemaking power resulting in the introduction of rule 38-B, we are ofthe opinion that Rule 38-B cannot be challenged on the ground thatSection 15 of the Parent Act does not provide for such a power. Inthis connection, we also refer (1992) 2 SCC 683 (PINE CHEMICALSLTD., v. ASSESSING AUTHORITY) wherein the Hon'ble Supreme Courtwas pleased to hold that when the power is available with theParent Act, the wrong quoting of the statute would not make therule ultra-vires. We are also of the opinion that rule 38-B isconstitutionally valid. In this connection, it is useful to refer(2000) 8 SCC 655 (QUARRY OWNERS' ASSOCIATION v. STATE OF BIHAR).The Hon'ble Supreme Court in paragraph 36 as stated as follows:"36. We have to keep in mind, in the presentcase, delegation of power is on the StateGovernment which is the highest executive in theState, which is responsible to the StateLegislature. In a parliamentary democracy every actof the State Government is accountable to itspeople through the State Legislature which itselfis an additional factor which keeps the StateGovernment under check not to act arbitrarily orunreasonably. When a policy is clearly laid down ina statute with reference to the minor minerals withthe main object under the Act being for itsconservation and development, coupled with variousother provisions to the Act guiding it, checking itand controlling it, then how could such delegationbe said to be unbridled?...".Therefore, we are of the opinion that rule 38-B is validin law, having been introduced by invoking the power conferredunder Section 23-C of the MMDR Act, 1957.13. Definition of the word "Regulation"Shri.V.T.Gopalan has contended that the word regulationmentioned in Section 23-C of the Act should not be construed tomean prohibition. He further contended that a total prohibition isimpermissible in law, violative of Article 19(1)(g) and therefore,the impugned rule is liable to be declared as bad and law. We are of the opinion that the word "regulation" has nofixed connotation. The said word will have to be given widermeaning when the public interest is involved. In the judgmentreported in (1981) 2 SCC 205 (STATE OF TAMIL NADU v. HIND STONE),the Hon'ble Supreme Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "10.One of the arguments pressed before us wasthat Section 15 of the Mines and Minerals(Regulation and Development) Act authorised themaking of rules for regulating the grant of miningleases and not for prohibiting them as Rule 8-Csought to do, and, therefore, Rule 8-C was ultravires Section 15. Well known cases on the subjectright from Municipal Corporation of the City ofToronto v. Virgo and Attorney-General for Ontariov. Attorney-General for the Dominions up to Stateof U.P. v. Hindustan Aluminium Corporation Ltd.,were brought to our attention. We do not think that'regulation' has that rigidity of meaning as neverto take in 'prohibition'. Much depends on thecontext in which the expression is used in thestatute and the object sought to be achieved by thecontemplated regulation. It was observed by Mathew,J. in G.K.Krishnan v. State of Tamil Nadu: "Theword 'regulation' has no fixed connotation. Itsmeaning differs according to the nature of thething to which it is applied". In modern statutesconcerned as they are with economic and socialactivities, 'regulation' must, of necessity,receive so wide an interpretation that in certainsituations, it must exclude competition to thepublic sector from the private sector. More so in awelfare State. It was pointed out by the PrivyCouncil in Coommonwealth of Australia v. Bank ofNew South Wales – and we agree with what was statedtherein – that the problem whether an enactment wasregulatory or something more or whether arestriction was direct or only remote or onlyincidental involved, not so much legal aspolitical, social or economic consideration andthat it could not be laid down that in nocircumstances could the exclusion of competition soas to create a monopoly, either in a State orCommonwealth agency, be justified. Each case, itwas said, must be judged on its own facts and inits own setting of time and circumstances and itmight be that in regard to some economic activitiesand at some stage of social development,prohibition with a view to State monopoly was theonly practical and reasonable manner of regulation.The statute with which we are concerned, the Minesand Minerals (Development and Regulation) Act, isaimed, as we have already said more than once, atthe conservation and the prudent and discriminating https://hcservices.ecourts.gov.in/hcservices/ exploitation of minerals. Surely, in the case of ascarce mineral, to permit exploitation by the Stateor its agency and to prohibit exploitation byprivate agencies is the most effective method ofconservation and prudent exploitation. If you wantto conserve for the future, you must prohibit inthe present. We have no doubt that the prohibitingof leases in certain cases is part of theregulation contemplated by Section 15 of the Act."Similarly, in (2000) 8 SCC 655 (QUARRY OWNERS'ASSOCIATION v. STATE OF BIHAR) it has been held that the wordregulation will have to be given a wide interpretation taking intoconsideration of social, economic and political justice. We are ofthe opinion that while deciding as to whether the prohibition isreasonable, the Court has to take into consideration the greaterpublic and social interest as against the fundamental right of thecitizen. In (2003) 7 SCC 589 (INDIAN HANDICRAFTS EMPORIUM v. UNIONOF INDIA), the Hon'ble Supreme Court has held that prohibition oftrade and ivory does not offend Article 19(1)(g) and the same is areasonable restriction under Article 19(6) of the Constitution. Itis also to be noted only sand is prohibited from taking outsidethe State in view of the overwhelming public interest.Therefore, we are of the opinion that the definition ofthe word regulation is wide enough to cover the prohibition andmovement of minerals outside the State. 14.Statement and Reasoning of Section 23-CThe learned senior counsel for the petitioners hasfurther contended that in view of the statement and reasoning forSection 23-C of the Act, it cannot be construed that the wordtransport and storage are independent words and therefore, theyshould be read as illicit transport and illicit storage. On aplain reading of Section 23-C of the Mines and Minerals(Development and Regulation) Act, 1957, there is nothing toindicate that the words transport or storage would only meanillicit transport and illicit storage. In this connection, it isuseful to refer 2003 (1) SCC 692 (BHAIJI v. SUB DIVISIONALOFFICER, THANDLA) wherein the Hon'ble Supreme Court has held asfollows:"Reference to the Statement of Object and Reasonsis permissible for understanding the background,the antecedent state of affairs, the surroundingcircumstances in relation to the statute and evilwhich the statute sought remedy. The wait ofjudicial authority leans in favour of the view that https://hcservices.ecourts.gov.in/hcservices/ the Statement of Object and Reasons cannot beutilised for the purpose of restricting andcontrolling the plain meaning of the languageemployed by the legislature in drafting a statuteand excluding from its operation, such transactionswhich it plainly covers." Therefore, by applying the said principle thecontention raised by Shri.V.T.Gopalan does not merit acceptanceand hence the same is rejected.15. Principle of Ejusdem GenerisEjusdem Generis is a Latin Expression which means "of the samekind". In other words, it means words of similar class.In so far as the principle of ejusdem generis isconcerned, we are of the opinion that the said rule applies onlywhen the subjects of enumeration constitute a class or category,statute enumerates the specific words, the general terms followthe enumeration and there is no indication of a differentlegislative intent. The principle of ejusdem generis wouldtherefore apply only when there is an ambiguity whileinterpreting any statute. The said rule is applicable whenparticular words pertaining to class, category or genus arefollowed by general words. In this Connection, the Hon'ble SupremeCourt in (2002) 1 147 ELJ 593 (GRASIM INDUSTRIES LTD., v.COLLECTOR OF CUSTOMS, BOMBAY) has held that the said principlewill have to be applied with care and caution. The Hon'ble SupremeCourt has also held that the plain meaning will have to be givenby the Court.We are also of the opinion that the Court cannot readanything into a statutory provision. A construction which requiresfor its support, an addition or substitution of words will have tobe avoided. In the present case, the learned senior counsel forpetitioner wants the Court to read the words "transport andstorage" as illegal transport and illegal storage. We are afraidsuch an interpretation cannot be given and the same isimpermissible in law. In this connection, it is useful to referthe recent judgment of the Hon'ble Supreme Court in (2008) 306 ITR277 (UNION OF INDIA v. DHARMENDRA TEXTILES PROCESSORS), theHon'ble Supreme Court in paragraph 52 has stated as follows:"52...It is a well-settled principle in lawthat the Court cannot read anything into astatutory provision or a stipulated condition whichis plain and unambiguous. A statute is an edict of https://hcservices.ecourts.gov.in/hcservices/ the Legislature. The language employed in a statuteis the determinative factor of legislative intent.Similar is the position for conditions stipulatedin advertisements.Words and phrases are symbols that stimulatemental references to referents. The object ofinterpreting a statute is to ascertain theintention of the Legislature enacting it. (SeeInstitute of Chartered Accountants of India v.Price Waterhouse (1997) 6 SCC 312). The intentionof the Legislature is primarily to be gathered fromthe language used, which means that attentionshould be paid to what has been said as also towhat has not been said. As a consequence, aconstruction which requires for its support,addition or substitution of words or which resultsin rejection of words as meaningless has to beavoided. As observed in Crawford v. Spooner (1846)6 Moo PC 1, the courts cannot aid the Legislature'sdefective phrasing of an Act, they cannot add ormend, and by construction make up deficiencieswhich are left there. (See State of Gujarat v.Dilipbhai Nathjibhai Patel (1998) 3 SCC 234). It iscontrary to all rules of construction to read wordsinto an Act unless it is absolutely necessary to doso. (See Stock v. Frank Jones (Tipton) Ltd. (1978)1 All ER 948 (HL). Rules of interpretation do notpermit the courts to do so, unless the provision asit stands is meaningless or of doubtful meaning.The courts are not entitled to read words into anAct of Parliament unless clear reason for it is tobe found within the four corners of the Act itself.(Per Lord Loreburn L.C. in Vickers Sons)".The question is not what may be supposed andhas been intended but what has been said. "Statutesshould be construed not as theorems of Euclid",Judge Learned Hand said, "but words must beconstrued with some imagination of the purposeswhich lie behind them". (See Lenigh Valley Coal Co.v. Yensavage, 218 FR 547). The view was reiteratedin Union of India v. Filip Tiago de Gama of VedemVasco de Gama (1990) 1 SCC 277 (SCC page 284,paragraph 16).In D.R.Venkatachalam v. Deputy TransportCommissioner (1977) 2 SCC 273, it was observed thatthe courts must avoid the danger of a prioridetermination of the meaning of a provision basedon their own preconceived notions of the https://hcservices.ecourts.gov.in/hcservices/ ideological structure or scheme into which theprovision to be interpreted is somewhat fitted.They are not entitled to usurp legislative functionunder the disguise of interpretation.While interpreting a provision the court onlyinterprets the law and cannot legislate it. If aprovision of law is misused and subjected to theabuse of process of law, it is for the Legislatureto amend, modify or repeal it, if deemed necessary.(See Commissioner of Sales Tax v. Popular TradingCo. (2000) 5 SCC 511). The legislative casusomissus cannot be supplied by judicialinterpretative process...."In this connection, it is useful to refer a recentjudgment of the Hon'ble High Court in W.A.NOS.4150 AND 4151 OF2004 DATED 19.08.2008 (STATE OF TAMIL NADU v. K.SELVARAJ ANDANOTHER) wherein one of us was a party (Justice K.Ravi RajaPandian) in which the Division Bench of this Court has consideredthe application of the Principles of "ejusdem generis" in detail.In paragraph 5, 6 and 20 of the said judgment the Hon'ble Benchhas stated as follows:"5.We are not able to concur with thereasoning given by the Writ Court for setting asidethe notification. The principle of interpretationof the statute or a provision of a statute has beenthe subject matter for decision before the ApexCourt in a plethora of cases. In all those cases,the Apex Court ruled that the elementary principleof interpreting any word while considering astatute is to gather the mens or sententia legis ofthe legislature. Where the words are clear andthere is no obscurity, and there is no ambiguityand the intention of the legislature is clearlyconveyed, there is no scope for the Court to takeupon itself the task of amending or alternating thestatutory provisions. Wherever the language isclear the intention of the legislature is to begathered from the language used. While doing so,what has been said in the statute as also what hasnot been said has to be noted. The constructionwhich requires for its support addition orsubstitution of words or which results in rejectionof words has to be avoided. In case of an ordinaryword there should be no attempt to substitute orparaphrase of general application. Attention shouldbe confined to what is necessary for deciding theparticular case. https://hcservices.ecourts.gov.in/hcservices/

6.The Apex Court further ruled that no wordsor expressions used in any statute can be said tobe redundant or superfluous. In matters ofinterpretation one should not concentrate too muchon one word and pay too little attention to otherwords. No provision in the statute and no word inany section can be construed in isolation. Everyprovision and every word must be looked atgenerally and in the context in which it is used.It is said that every statute is an edict of thelegislature. (See: Gwalior Rayons Silk Mfg. (Wvg.)Co. Ltd. v. Custodian of Vested Forests, Palghatand Another, ((1990) Supp SCC 785); Union of Indiav. Deoki Nandan Aggarwal, ((1992) Supp (1) SCC323); Institute of Chartered Accountants of Indiav.Price Waterhouse, ((1997) 6 SCC 312), HarbhajanSingh v. Press Council of India and others ((2002)3 SCC 722) and Grasim Industries Limited v.Collector of Customs, Bombay ((2002) 4 SCC 297)).20.The exposition of law as to theapplicability of the rule of ejusdem generis isclassically expressed by the Apex Court in the caseof Siddeshwari Cotton Mills (P) Ltd. v. Union ofIndia, (1989) 2 SCC 458, as follows:12. The expression ejus-dem-generis – "of thesame kind or nature" – signifies a principle ofconstruction whereby words in a statute which areotherwise wide but are associated in the text withmore limited words are, by implication, given arestricted operation and are limited to matters ofthe same class or genus as preceding them. If alist or string or family of genus-describing termsare followed by wider or residuary or sweeping-upwords, then the verbal context and the linguisticimplications of the preceding words limit the scopeof such words.13.In Statutory Interpretation Rupert Cross(p.116) says:"The draftsman must be taken to have insertedthe general words in case something which ought tohave been included among the specificallyenumerated items had been omitted..."14.The principle underlying this approach tostatutory construction is that the subsequentgeneral words were only intended to guard againstsome accidental omission in the objects of the kind https://hcservices.ecourts.gov.in/hcservices/ mentioned earlier and were not intended to extendto objects of a wholly different kind. This is apresumption and operates unless there is somecontrary indication. But the preceding words orexpressions of restricted meaning must besusceptible of the import that they represent aclass. If no class can be found, ejusdem generisrule is not attracted and such broad constructionas the subsequent words may admit will be favoured.As a learned author puts it :"...if a class can be found, but the specificwords exhaust the class, then rejection of the rulemay be favoured because its adoption would make thegeneral words unnecessary; if, however, thespecific words do not exhaust the class, thenadoption of the rule may be favoured because itsrejection would make the specific wordsunnecessary. (See Construction of Statutes byE.A.Driedger p.95 quoted by Francis Bennion in hisStatutory Construction page 829 and 830)."15.Francis Bennion in his StatutoryConstruction (pp.830-31) observed:"For the ejusdem generis principle to applythere must be a sufficient indication of a categorythat can properly be described as a class or genus,even though not specified as such in the enactment.Furthermore the genus must be narrower than thewords it is said to regulate. The nature of thegenus is gathered by implication from the expresswords which suggest it...It is necessary to be able to formulate thegenus; for if it cannot be formulated it does notexist. 'Unless you can find a category', saidFarwell L.J., 'there is no room for the applicationof the ejusdem generis doctrine'."In S.S.Magnhild v. Mclntyre Bros. & Co. (1920(3) KB 321), McCardie, J. said :(KB p.330):So far as I can see the only test seems to bewhether the specified things which precede thegeneral words can be placed under some commoncategory. By this I understand that the specifiedthings must possess some common and dominantfeature."17.In Tribhuban Parkash Nayyar v. Union ofIndia, ((1970) 2 SCR 732) the Court said : (SCCp.106, para 13: SCR p.740)"... The rule reflects an attempt to reconcileincompatibility between the specific and generalwords, in view of the other rules of https://hcservices.ecourts.gov.in/hcservices/ interpretation, that all words in a statute aregiven effect if possible, that a statute is to beconstrued as a whole and that no words in a statuteare presumed to be superfluous..."18.In UPSEB v. Hari Shankar (AIR 1979 SC 65)it was observed : (SCC p.30, para 15 : AIR p.73)"... The true scope of the rule of 'ejusdemgeneris' is that words of a general naturefollowing specific and particular words should beconstrued as limited to things which are of thesame nature as those specified. But the rule is onewhich has to be 'applied with caution and notpushed too far'..."19.The preceding words in the statutoryprovision which, under this particular rule ofconstruction, control and limit the meaning of thesubsequent words must represent a genus or a familywhich admits of a number of species or members. Ifthere is only one species it cannot supply the ideaof a genus."Therefore, on a consideration of the various judgmentsof the Hon'ble Supreme Court and the Hon'ble High Court and aftergoing through Section 23-C of the Act, we are of the opinion thatthe principle of Ejusdem Generis would not apply to the presentcase.16. Environmental Perspective The said rule has been introduced in view of the attemptmade by the dealers of sand and contractors of building totransport the sand purchased from the Government outside theState. According to the Government, the said rule has been made inpublic interest and also taking into consideration of the hardshipthat caused to the consumers in the State of Tamil Nadu as well asthe high rate of urbanisation in the State. In the counteraffidavit, it is also stated by the Government that illegal,unaccounted sand is also transported outside the State.It is well known that sand in the present form hasalready undergone various changes over thousands of years. Asfound by the Expert Committee, due to over exploitation andindiscriminate mining of river sand, the environment and the eco-system got very much affected. The Expert Committee has also foundout that the indiscriminate mining has resulted in deepening ofthe river beds, widening of the rivers, damage of civilstructures, depletion of ground water table, degradation of groundquality, damage to the rivers system and reduction of biodiversity. Therefore, what is important is to use the barest https://hcservices.ecourts.gov.in/hcservices/ minimum of sand for developmental activities. If the sand isallowed to be transported due to the demands in various placesoutside the State it would only increase the demand for more sand.This in turn would affect the environment seriously. Hence one hasto see the impact on the natural resources. Whether it isauthorized or not, legal or illegal what is important is theconservation and protection of the environment. The right to cleanenvironment is a guaranteed fundamental right under Article 21.Article 48-A of the Constitution speaks about protection andimprovement of environment and Article 51(A) of the Constitutiondeals with the fundamental duties to protect and improve thenatural environment including forest, lakes, rivers and wild life.The Hon'ble Supreme Court has held in (2003) 7 SCC 589 (INDIANHANDICRAFTS EMPORIUM v. UNION OF INDIA), that the implementationof Directive principle is within the expression of restriction inthe interest of general public.Hence, we hold that from the environmental perspectivealso the impugned rule has to be sustained.17.Doctrine of Public TrustIn (1981) 2 SCC 205 (STATE OF TAMIL NADU v. HINDSTONE), it has been held as follows:"6.Rivers, Forests, Minerals and such otherresources constitute a nation's natural wealth.These resources are not to be frittered away andexhausted by any one generation. Every generationowes a duty to all succeeding generations todevelop and conserve the natural resources of thenation in the best possible way. It is in theinterest of mankind. It is in the interest of thenation...."Thus the Hon'ble Supreme Court has evolved the principleof doctrine of public trust. As of the said theory, the naturalresources are not only meant for the present generation but shouldbe preserved for the posterity. The Government and the presentgeneration acts as a trustees for the future generation. The saidprinciple was also followed by the Hon'ble Supreme Court in (2006)1 SCC 1 (T.N.GODARVARMAN THIRUMULPAD v. UNION OF INDIA, whereinthe Supreme Court was pleased to hold that the natural resourcesare the assets of the entire nation, that is the obligation of allconcerned including the Union Government and the State Government.Therefore, under the principle of public trust doctrine also, theimpugned rule will have to be sustained. https://hcservices.ecourts.gov.in/hcservices/

18. Impact of Rule 38-A:Rule 38-A of the Tamil Nadu Minor Minerals ConcessionRules, 1959 was introduced based upon the recommendations of theExpert Committee and also in pursuant to the orders passed by theHon'ble High Court. The said rule has been introduced with a viewto regulate and control indiscriminate, over exploitation andillicit sand mining. As stated earlier both the Division Bench ofthe Hon'ble High Court as well as the Hon'ble Supreme Court haveupheld the validity of the rule 38-A. We are of the opinion thatrule 38-B is nothing but a natural sequence to rule 38-A. Theobject and purpose of rule 38-B is similar to that of rule 38-A.Therefore, rule 38-B will have to be read in the context of rule38-A which is upheld by the Hon'ble Supreme Court of India. 19.It is a matter of fact that there is a huge demandfor sand due to the spurt in developmental activities. It is alsoa matter of fact that in some of the neighbouring States, there isa total ban of sand quarrying in the rivers. As held already therivers are natural resources of the nation as well as the entireworld and they cannot be allowed to be damaged in a particularState as against the other States. Rivers and other waterresources are dwindling coupled with the increase in demand forwater due to ever growing population. It is to be noted that evenin the counter affidavit it has been stated by the respondentsthat the dealers and businessmen are trying to make huge profitsby selling not only the sand from the Government but alsoindulging in indiscriminate quarrying and transporting the same inthe guise of a valid permit. Hence, we are of the opinion thattaking into consideration of the overall public interest theimpugned Rule will have to be sustained. 20.For the reasons stated above, we are of the opinionthat the writ petitions are liable to be dismissed. Accordingly,the same are dismissed. No costs. Consequently, connectedmiscellaneous petitions are dismissed.SriSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary Government of Tamil Nadu Industries Department Fort St. George Chennai – 600 009.2.The Secretary Public Works Department Fort St. George Chennai – 600 009.3.Director of Geology and Mining Guindy Chennai – 600 032.4.The District Collector Krishnagiri District Krishnagiri.+ 1 cc to Mr. K. Ramakrishna Reddy, Advocate SR No.17936+ 1 cc to the Government Pleader, SR No.18186ORDER INW.P. NOS.23317 and 24211 OF 2008NSM(CO)SR/6.5.2009