R. Soundarapandian and Others vs Special Secretary to Government of Tamil Nadu, Industries Department

A. Varadarajan, J.—These writ petitions have been filed under Article 226 of the Constitution of India by various miners of and dealers in

sea-shells, for the issue of writs of certiorari or other appropriate writs or orders, calling for the records pertaining to the respondent''s order in

G.O. Ms. No. 73129/D3/73, dated 3rd April, 1975 and quashing that order in so far as it concerns the petitioners. As stated earlier, the

petitioners are miners of and dealers in sea-shells in and around Tuticorin town in Tirunelveli District. While as lime-shell has been included as item

14 in the Second Schedule to the Mines and Minerals (Regulation and Development), Act, 1957 by G.S.R. 1486 dated 31st October, 1962

published in the Gazette of India, Part II, Section 3(i), page 1791, sea-shell is not included in the schedule which prescribes rates of royalty to be

paid to the Government, The petitioners were not obtaining any lease or licence for mining sea-shells by digging patta lands belonging to private

parties and dealing in the same. But, by the impugned order dated 3rd April, 1975, the respondent, under the impression that sea-shells are the

same as lime-shell governed by the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the

Act), considered that sea-shell has to be treated as a major mineral for which royalty is leviable at the rates fixed in the Second Schedule to the

Act and directed the Collector of Tirunelveli to take further action accordingly. In the impugned order, it is stated that it is reported by the Director

of Industries and commerce that sea-shell is the same as lime shell, which is classified as a major mineral in the Second Schedule to the Act and

that as salt pan gypsum and sea-hells quarried from patta lards near Tuticorin village are transported to various places for sale and quarrying of

these shells is done for commercial purposes without licence, and as the above two minerals do not find a place in the associated minerals under

Rule 69 of the Mineral Concession Rules, 1960(hereinafter referred to as the Rules), the Collector of Tirunelveli had requested the respondent to

have the Government of India to notify the sea-shells and salt pan gypsum as associated minerals under the said rules and bring them under the

Rules. It is seen from paragraph 2 of the common counter affidavit filed in all these writ petitions that the Government of India were addressed for

the implementation of the provisions of the Act against the removal of salt pan gypsum and sea-shells by the respondent''s letter dated 24th

September, 1973. On the basis of the impugned order of the respondent, the Collector of Tirunelveli asked the petitioners to take out licences and

leases and to pay royalty at the rate applicable to lime shell in the Second Schedule to the Act. The contention of the petitioners before the

Collector was that sea-shells are not the same as lime shell and that they are not bound to pay any royalty. That contention does not appear to

have been accepted by the Collector. The President of the National Limeshell Workers'' Union and the Limeshell Dealers'' Association and others

had made representations before the respondent, the President National Limeshell Workers. Union on 20th September, 1976 and the Lime-shell

Dealers'' Association on 4th October, 1976, and the respondent considered those representations and had observed in G.O. Ms. No. 694.

Industries Department, dated 26th May, 1977 that it is not possible to treat the lime-shells and sea-shells occurring in Tirunelveli District alone as

''minor minerals'' and do away with the enforcement of mining regulations. The impugned order of the respondent is attacked before me by the

learned Counsel for the petitioners on three grounds, viz-, (1) that the Government of India had not notified sea-shells and salt pan gypsum as

associated minerals under the Rules and, therefore, the respondent has no power to treat sea-shell as a major mineral subject to payment of royalty

under the provisions of the Act; (2) that sea-shell as such does not find a place in the Second Schedule to the Act, which is a central enactment,

and therefore, the respondent is rot entitled to say that sea-shell is the same as lime-shell; and (3) that sea shell is not a mineral at all.

In the common counter-affidavit filed in these writ petitions, it is admitted by the respondent that the Government of India were addressed on

24th September, 1973 to classify sea-shell quarried in Tuticorin as a major mineral and for regulating the same under the provisions of the Act and

the Rules and it is contended that pending orders of the Government of India, on the request made in their letter dated 24th September, 1973, the

respondent issued the impugned order directing the Special Deputy Tahsildar (Mines) Tirunelveli, to take certain steps under the provisions of the

Act and the Rules. It was admitted by the learned advocate for the respondent that the Government of India has not yet issued the notification

requested by the respondent by their letter dated 24th September, 1973. In the common counter-affidavit it is further contended that the

Additional State Geologist, at the request of the Government of Tamil Nadu, has informed the Government on 3rd July, 1973 that sea shells

quarried are lime-shells which are classified as major minerals and that they have to be regulated under the provisions of the Act and the Rules.

Thus, the contention of the respondent is that sea-shells are the same as lime shell which is found as item 14 of the Second Schedule to the Act and

that the impugned order is valid.

I shall first consider the question whether sea-shell is not a mineral at all. As stated earlier, in the common counter-affidavit it is stated that it is a

mineral. In the Act ''major mineral'' is not defined, but ''minerals'' and ''minor minerals'' are defined in Section 3(a) and 3(e) respectively. ''Minerals''

according to Section 3(a) include all minerals except mineral oils, and ''minor minerals'' according to Section 3(e) mean building stones, gravel,

ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government may by

notification in the Official Gazette, declare to be a minor mineral. In the Mines Act of 1952, ''minerals'' are stated to mean a substance which can

be obtained from the earth by mining, digging, drilling, dredging, hydraulicing quarrying or by any other operation and to include mineral oils which

in turn include natural gas and petroleum. Learned counsel for the petitioners submits that this definition in the Mines Act, 1952, which had been

passed to amend and consolidate the law relating to the Regulation of labour and safety in mines, could not be adopted for the purposes of the

Act, with which we are concerned in this case, and, therefore, we have to resort to the dictionary to see what the term ""mineral"" used in the Act

means. In the Webster''s Third New International Dietonary, 1968, ""mineral"" has been defined as

1 a. a solid homogeneous crystalline chemical element or compound (as diamond or quartz) that results from the inorganic processes of nature and

that has a characteristic crystal structure and chemical composition or range of compositions.

b. any of various naturally occurring homogenous or apparently homogeneous and usually but not necessarily solid substances (as ore, coal,

asbestos, asphalt, borax clay, fuller''s earth, pigments, precious stones, rock phosphate, salt, soap-stone, sulphur, building, stone, cement rock,

peat sand, gravel, slate salts, extracted from river, lake and ocean waters, petroleum, water, natural gas. air, and gases, extracted from the air)

obtained for man''s use usually from the ground.

Something that is neither animal nor vegetable (as in the old general) classification of things into three kingdoms: animal, vegetable, and mineral.

Learned counsel for the petitioners submits that sea-shells are not part of the earth and, therefore, cannot constitute ''mineral'' though at the

particular places in and around Tuticorin it is dug out of earth. On the other-hand, it is contended by the learned Counsel for the respondent that

the definition in the Mines Act, 1952, would necessarily apply in this case governed by the Act and that as sea-shell is admittedly dug out from the

earth it will be a mineral according to that definition. I am of the opinion that it is not possible to hold that the definition of ''minerals'' in the Mines

Act, 1952 could not be made applicable to the word ''minerals'' in the Act of 1957, merely because the main Act has been passed with the object

of consolidating the law relating to the Regulation of labour and safety in mines. Since sea-shells in the present case are admittedly dug out from the

earth. I am of the opinion that they would fall within the definition of ''minerals'' and I hold accordingly.

The Act of 1957 is a Central enactment and as stated earlier, lime-shell had been included as item 14 in the Second Schedule by G.S.R. 1486

dated 31st October, 1962 published in the Gazette of India, Part II, Section 3(i), page 1791. The respondent also appears to have been under the

impression that as requested by the Collector of Tirunelveli, a notification of the Government of India is necessary to include sea-shells as a mineral

in the Second Schedule to the Act and had, therefore, addressed the Government of India for that purpose by their letter dated 24th September,

1973. Section 13 of the Act provides for the Central Government to make rules in respect of minerals. Clause (1) of that section lays down that

the Central Government may by notification in the Official Gazette, make rules for regulating the grant of prospecting licences and mining leases in

respect of minerals and for purposes connected therewith. Clause (2) of that section says that in particular, and without prejudice to the generality

of the foregoing power such rules may provide for all or any of the following matters, and one of the matters mentioned in Clause (2), viz., in Sub-

clause (k) is the grouping of associated minerals for the purpose of Section 6 of the Act, which deals with the maximum area for which a

prospecting licence or mining lease may be granted. Rule 69 of the Rules had been framed in exercise of the powers conferred by Section 13 of

the Act and it says that the items mentioned in that Rule shall be the group of associated minerals for purposes of Section 6 of the Act. Item (ix) of

the Rule groups limestock, dolomite and magnesite as one group, and sea-shells are not included in that group, though as already stated, lime-shell

has been included as item 14 in the Second Schedule to the Act. Section 9 of the Act provides for the payment of royalty by the holder of a mining

lease granted before the commencement of the Act, notwithstanding anything contained in the instrument of lease or in any law in force at such

commencement in respect of any mineral removed or consumed by him or by his agent, manager etc., from the leased area after such

commencement at the rate for the time being specified in the Second Schedule in respect of that mineral. A reading of this section would show that

royalty at the rate specified in the Second Schedule could be levied only in respect of the minerals mentioned in that schedule and at the rate

specified for that mineral. Sea-shell, as already stated, is not included in the Second Schedule to the Act. Therefore it has been contended by the

learned Counsel for the petitioners, rightly in my opinion, that royalty could not be levied in respect of sea-shells, which were not included in the

Second Schedule to the Act. It was conceded by the learned Counsel for the respondent that apart from Section 13 and Rule 69, there is no

provision in the Act or the Rules governing the matter with which we are concerned in these writ petitions. Therefore, in the absence of any

notification by the Government of India u/s 13(2)"" of the Act, grouping sea shell as an associated mineral for the purpose of Section 6 of the Act

and having regard to the fact that sea shell is not included as an item in the Second Schedule to the Act, it is not open to the respondent, who had

not yet obtained the necessary notification requested for by their letter dated 24th September, 1973 to say by the impugned order that the

provisions of the Act and the Rules should be made applicable to the mineral of sea-shells. For the reasons stated above, the writ petitions are

allowed with costs. Advocate''s fee Rs. 750/-(one set).