Krupasindhu Muduli Decision

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10373 – 10374 OF 2010
STATE OF GUJARAT AND OTHERS ETC. .....APPELLANT(S)
VERSUS
JAYESHBHAI KANJIBHAI KALATHIYA ETC. .....RESPONDENT(S)
JUDGMENT
A.K. SIKRI, J.
Two writ petitions were filed in the High Court of Gujarat
under Article 226 of the Constitution of India. One writ petition
was filed by a single person (respondent herein) who had been
awarded contract for one year to extract, collect, gather and
remove ordinary sand from river Tapi falling within certain area at
village Amboli, Taluka Kamrej, Surat. The sand being a mine and
mineral, it is the State Government which is empowered to grant
such leases. After the excavation of sand, a part there of was
Signature Not Verified

subjected to further processing by addition of fly ash and the
Digitally signed by
other part was sold as sand outside the State of Gujarat. Second
MANISH SETHI
Date: 2019.03.01
18:43:47 IST
Reason:
petition was filed by ten petitioners (respondents in the second
Civil Appeal Nos. 10373-10374 of 2010 Page 1 of 41

appeal). They are in the business of processing ordinary river
sand after buying it from leaseholders. The process involves
washing, cleaning and mixing fly ash to convert it into IS-Zone-2-
Sand, which is then sold in 50 kg. Bags under a brand name.
These respondents supply that sand to builders in the State of
Maharashtra.
2) As is clear from the aforesaid facts, sand, after processing, is sold
outside the State of Gujarat. The challenge laid in the writ
petitions was against the Resolution No. GMR-102010-1-S-CHH
dated May 04, 2010 whereby all leaseholders, stockists, traders
and exporters were prohibited from exporting ordinary sand
excavated from the areas in the State of Gujarat to other States
within the country or other countries by transporting such sand
outside the State or the country. When these writ petitions were
pending consideration, the Government of Gujarat issued a
Notification on June 11, 2010 thereby amending the Gujarat
Minor Mineral Rules, 1966 by making the Gujarat Minor Mineral
(Amendment) Rules, 2010 with the insertion of Rule 44-BB, with
immediate effect. This amendment was done in purported
exercise of powers conferred under Section 15 read with Section
23-C of the Mines and Minerals (Development and Regulation)

Act, 1957 (hereinafter referred to as the ‘MMDR Act’). By way of
Rule 44-BB, movement of sand beyond the border of the State of
Gujarat was prohibited. Rule 44-BB reads as under:
"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.”
3) Within two months thereafter, i.e. on August 26, 2010, the State of
Gujarat also notified the Gujarat Minor Mineral Concession Rules,
2010 so as to repeal the Gujarat Minor Mineral Rules, 1966. Rule
71 of the new Rules was to the same effect as Rule 44-BB and
the same is 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.”
4) This led the respondents to amend the writ petitions thereby
incorporating challenge to Rule 44-BB of Amendment Rules as
well as Rule 71 of the Concession Rules. The High Court has,
vide impugned judgment, allowed the writ petitions and struck
down the aforesaid Rules as ultra vires on the ground that the

rule making power of the State Government does not empower
and cannot be stretched to empower the State Government to
make Rules directly prohibiting movement of mineral so as to
impinge upon the freedom guaranteed by Article 301 of the
Constitution. It may be noted here itself that a Division Bench of
the Andhra Pradesh High Court in C. Narayana Reddy and etc.
v. Commissioner of Panchayat Raj and Rural Employment,
A.P., Hyderabad and others1 had taken a contrary view.
Likewise, the Madras High Court had also decided this issue vide
its judgment dated April 27, 2009 in D. Sivakumar v.
Government of Tamil Nadu2 by taking similar view as that of the
Andhra Pradesh High Court. In the impugned judgment, the
Gujarat High Court has, however, differed with the Andhra
Pradesh and Madras High Courts. Having regard to the
conflicting opinion of the High Courts, leave was granted in this
matter. This is how the instant appeals came to be heard finally
by this Court.
5) Before proceeding further, we would like to recapitulate, in broad,
the scheme of the MMDR Act insofar as it relates to regulating
minor minerals are concerned and the powers that are delegated
by the Central Government to the State Governments in respect

1 AIR 2004 AP 234
2 Writ Petition Nos. 23317 and 24211 of 2008

of minor minerals. In this very hue, we also propose to take note
of the relevant provisions of the MMDR Act.
6) The MMDR Act is enacted by Parliament to provide for the
regulation of mines and development of minerals under the
control of the Union, i.e. the Central Government. Section 2
provides a declaration to this effect with the stipulation that it is
expedient in the public interest that Union should take under its
control, the regulation of mines and development of minerals, to
the extent provided in the Act. It is for this reason the Union took
control insofar as regulation of mines and development of
minerals is concerned. In order to exercise this control, no
reconnaissance or mining operations in any area are allowed by
any person except with the permission of the Central
Government. Even transportation or storage is prohibited
otherwise than in accordance with the provisions of the MMDR
Act and the Rules made thereunder (Section 4).
7) Section 13 of the MMDR Act empowers the Central Government
to make rules in respect of minerals.
8) It follows from the above that as far as minor minerals are
concerned, limited powers are given to the State Government

inasmuch as under Section 15 of the MMDR Act the State
Government is authorised to make rules in respect of minor
minerals. Relevant portions of this Section read as under:
"15. Power of State Governments to make rules in

respect of minor minerals. – (1) The State Government
may by notification in the Official Gazette make rules for
regulating the grant of quarry leases, mining leases or
other mineral concessions in respect of minor minerals
and for purposes connected therewith.
(1A) In particular and without prejudice to the generality of

the foregoing power, such rules may provide for all or any
of the following matters, namely –
xx xx xx
(d) 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;
xx xx xx
(o) any other matter which is to be, or may be prescribed.
xx xx xx”
9) There was an amendment to this Act by way of Mines and
Minerals (Regulation and Development) Amendment Act, 1999
(No. 38 of 1999) which became effective from December 18,
1999. By this Amendment Act, Section 4(1A), Section 23-A and
Section 23-C were inserted. We would like to reproduce these
sections along with the Statement of Objects and Reasons which
prompted the Legislature to insert these provisions:

"
STATEMENT OF OBJECTS AND REASONS
The Mines and Minerals (Regulation and Development)

Act, 1957 provides for the regular and development of
minerals other than petroleum and natural gas.
Consequent upon the decisions taken in the Conference of
the State Ministers/Secretaries of Mines and Geology held
in December, 1996, a Committee under the Chairmanship
of the then Secretary, Ministry of Mines was constituted in
February, 1997 to, inter alia, make recommendations
regarding delegation of powers to the State Governments
relating to grant and renewal of prospecting licences and
mining leases and other related approvals and to suggest
measures to reduce delay in this regard, review of the
existing laws and procedures governing the regulation and
development of minerals to make them more compatible
with the changed policies and measures for prevention of
illegal mining. The Committee in his report made wide-
ranging recommendations in the area of delegation of
powers to the State Governments, procedural
simplifications, etc. which will go a long way to mitigate the
problems faced by the States and the prospective
investors while, at the same time, keeping the interests of
the mining industry in particular and the national interest,
in general, in tact. After careful consideration of the
recommendations of the Committee, the Government has
decided to amend the Mines and Minerals (Regulation and
Development) Act, 1946.
2. Some of the more important amendments to be made

are as follows:
xx xx xx
(iii) A new provision is proposed to be inserted in the

Act prohibiting transportation or storage or anything
causing transportation or storage of any mineral
except under the due provisions of the Act, with a
view to preventing illegal mining. Further, the Act is
proposed to be amended to cover the breach of the
provisions of the proposed new provision of the Act to
be punishable. It is also proposed to insert a new
provision to provide for anything seized under the Act
as liable for confiscation under court orders. A new
section is proposed to be inserted to empower the
State Governments to make rules for preventing

illegal mining, transportation and storage of minerals
and for purposes connected therewith.
Section 4(1A)
No person shall transport or store or cause to be

transported or stored any mineral otherwise than in
accordance with the provisions of this Act and the rules
made thereunder.
Section 23-C
(1) The State Government may, by notification in the

Official Gazette, make rules for preventing illegal mining,
transportation and storage of minerals and for the
purposes connected therewith.
(2) In particular and without prejudice to the generality of

the foregoing power, such rules may provide for all or any
of the following mattes, namely:–
(a) establishment of check-posts for checking of

minerals under transit;
(b) establishment of weigh-bridges to measure the

quantity of mineral being transported;
(c) regulation of mineral being transported from the

area granted under a prospecting licence or a mining
lease or a quarrying licence or a permit, in whatever
name the permission to excavate minerals, has been
given;
(d) inspection, checking and search of minerals at

the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the

purposes of these rules;
(f) the period within which and the authority to which

applications for revision of any order passed by any
authority be preferred under any rule made under
this section and the fees to be paid therefor and
powers of such authority for disposing of such
applications; and

(g) any other matter which is required to be, or may
be, prescribed for the purpose of prevention of illegal
mining, transportation and storage of minerals.
(3) Notwithstanding anything contained in section 30, the

Central Government shall have no power to revise any
order passed by a State Government or any of its
authorised officers or any authority under the rules made
under sub-sections (1) and (2).”
10) As noted above, the impugned Rules are made in exercise of the
powers conferred under Section 23-C of the MMDR Act. Further,
as Section 14 categorically states that provisions of Section 5 to
13 are not applicable in respect of minor minerals, rule making
power of the Central Government contained in Section 13 does
not extend to minor minerals. It is in this context Section 15 gives
power to the State Government to make rules in respect of minor
minerals. The State Government, thus, is given power under
Section 15. It is also given power under Section 23-C.
11) A perusal of Sections 15 and 23-C in relation to the aforesaid
discussion would clearly suggest that the power of the State
Government to make rules is restricted to:
(a) making rules for grant of quarry leases, mining leases or
other mineral concessions in respect of minor minerals and for
the purposes connected therewith; and

(b) making rules for preventing illegal mining, transportation and
storage of minerals and for the purposes connected therewith.
12) In the aforesaid context, question arose before the High Court as
to whether in exercise of such powers delegated by the
Legislature upon the State Government, could the State
Government make a rule to the effect that the sand which is a
minor mineral would not be allowed to be taken beyond the
borders of the State of Gujarat and making such movement as
punishable offence. According to the High Court, delegation of
powers to the State Government under the aforesaid provisions
does not include or envisage restriction on inter-State trade,
commerce and intercourse which shall be free. Thus, the
impugned rules are held to be ultra vires the provisions of Section
15 and 23-C of the MMDR Act. They are also held to be violative
of Article 301 of the Constitution. Relevant discussion on this
aspect by the Gujarat High Court in the impugned judgment runs
as under:
"14. As seen earlier, the provisions of section 4(1-A) and

section 23-C were simultaneously added by the
amendment of 1999, with the objective of prohibiting
transportation or storage of any mineral, except in
accordance with the provisions of the Act and the Rules
made in that behalf, with a view to preventing illegal
mining. Prohibition or restriction of inter-State trade of any
mineral was neither intended nor provided or envisaged
either expressly or by necessary implication. On the other

hand, delegation of powers to make rules either in section
15 or in section 23-C of the Act is not couched in general
terms as in section 18. Section 18 exclusively empowers
the Central Government to make such rules as it thinks fit
for the purpose of conservation and development of
minerals in the whole country. Apart from delegation of
such powers couched in wider terms, the Central
Government is specifically authorized to make rules for
regulation of excavation or collection of minerals from any
mine as well as for storage of minerals. As against that,
the State Government is empowered to make rules, in
respect of all minerals, for regulation of minerals being
transported from the area granted under a prospecting
licence or a mining lease or a quarry licence or a permit.
The context and the composite scheme of the Act
contained in the provisions of sections 4(1-A), 15, 18, 21
and 23-C clearly indicate that the delegation of power to
regulate or make rules for transportation or storage of
minerals, including minor minerals, does not empower and
cannot be stretched to empower the State Government to
make rules directly prohibiting movement of minerals so as
to impinge upon the freedom guaranteed by Article 301 of
the Constitution. In fact, the State Government has
admittedly made the Gujarat Mineral (Prevention of Illegal
Mining, Transportation and Storage) Rules, 2005 in
exercise of the powers conferred by section 23-C of the
Act for regulating transport, possession and storage of
minerals in the State; and those rules are not under
challenge. Although it is not significant, in light of the view
being taken herein about validity of the impugned rules, it
needs to be noted that the part of new Rule 71 taking
away the facility of compounding is apparently repugnant
to section 23-A of the Act. And, if validity of the impugned
rules cannot be upheld, the impugned resolution cannot
stand without the support of any legal, executive or
legislative authority.”
13) We may also, at this stage, refer to the reasoning given by the
High Courts of Andhra Pradesh and Madras in support of their
view, which is in conflict with the view taken by the Gujarat High

Court. The judgment of the Andhra Pradesh High Court proceeds
to decide the issue in the following manner:
"27. Sector 23-C of the Act authorises the State

Government to make rules not only for the purpose of
preventing illegal mining but also for transportation and
storage of minor minerals, which power would imply that
even after the minor mineral has been mined, the power is
conferred on the State Government to frame Rules for
such mined minor mineral as regards its storage and/or its
transportation and also to frame rules to see that no illegal
mining activity is carried on. Sub-clauses (a) to (g) of
Clause (2) of Section 23-C are illustrative of the matters,
which are covered under the rule making power. Sub-
section (2) says that in particular and without prejudice to
the generality of the powers conferred under Section 23-C,
rules may provide for all or any of the said matters. Sub-
clause (c) itself say that regulations can be framed of
mineral being transported from the area granted under the
licence or a mining lease. Rules can be framed on any of
the matters including transportation of the excavated
mineral. Section 23-C is the source of power under which
Rule 9-W can be said to have been framed by the State
Government. We have to keep in mind that the Parliament
passed the Amendment Act, 1999 (Act No. 38 of 1999)
thereby inserting Section 23-C in the Principal Act after the
decision of the Supreme Court in Kavery Chetty’s case
(supra). By the said provision, power was specifically
conferred on the State Government to make rules for
preventing illegal mining, transportation and storage of
minerals. The State Government has framed the Rules
thereafter. Thus, there is ample power with the State
Government to frame Rules regarding transportation of the
excavated minor mineral, which would include restriction
on the transport of the said minor mineral beyond the limits
of the State borders. In this view of the matter, the
challenge to Rule 9-W is without any substance.”
14) Likewise, the Madras High Court has proceeded to discuss the
issue as follows:
"13. Definition of the word ‘Regulation’

Shri V.T. Gopalan has contended that the word ‘regulation’
mentioned in Section 23-C of the Act should not be
construed to mean prohibition. He further contended that
a total prohibition is impermissible in law, violative of Article
19(1)(g) and, therefore, the impugned rule is liable to be
declared as bad in law. We are of the opinion that the
word ‘regulation’ has no fixed connotation. The said word
will have to be given wider meaning when the public
interest is involved. In the judgment reported in (1981) 2
SCC 205 (State of Tamil Nadu v. Hind Stone), the Hon’ble
Supreme Court has held as follows:
“10. One of the arguments pressed before us was

that Section 15 of the Mines and Minerals
(Regulation and Development) Act authorised the
making of rules for regulating the grant of mining
leases and not for prohibiting them as Rule 8-C
sought to do, and, therefore, Rule 8-C was ultra vires
Section 15. Well-known cases on the subject right
from Municipal Corporation of the City of Toronto v.
Virgo and Attorney-General for Ontario v. Attorney-
General for the Dominions up to State of U.P. v.
Hindustan Aluminium Corporation Ltd. were brought
to our attention. We do not think that “regulation” has
that rigidity of meaning as never to take in
“prohibition”. Much depends on the context in which
the expression is used in the statute and the object
sought to be achieved by the contemplated
regulation. It was observed by Mathew, J. in G.K.
Krishnan v. State of Tamil Nadu : “The word
‘regulation’ has no fixed connotation. Its meaning
differs according to the nature of the thing to which it
is applied.” In modern statutes concerned as they are
with economic and social activities, “regulation” must,
of necessity, receive so wide an interpretation that in
certain situations, it must exclude competition to the
public sector from the private sector. More so in a
welfare State. It was pointed out by the Privy Council
in Commonwealth of Australia v. Bank of New South
Wales — and we agree with what was stated therein
— that the problem whether an enactment was
regulatory or something more or whether a restriction
was direct or only remote or only incidental involved,
not so much legal as political, social or economic
consideration and that it could not be laid down that
in no circumstances could the exclusion of
competition so as to create a monopoly, either in a

State or Commonwealth agency, be justified. Each
case, it was said, must be judged on its own facts
and in its own setting of time and circumstances and
it might be that in regard to some economic activities
and at some stage of social development, prohibition
with a view to State monopoly was the only practical
and reasonable manner of regulation. The statute
with which we are concerned, the Mines and
Minerals (Development and Regulation) Act, is
aimed, as we have already said more than once, at
the conservation and the prudent and discriminating
exploitation of minerals. Surely, 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. We have no doubt that the prohibiting of
leases in certain cases is part of the regulation
contemplated by Section 15 of the Act.”
Similarly, in (2000) 8 SCC 655 (Quarry Owners’ Assocation

v. State of Bihar) it has been held that the word ‘regulation’
will have to be given a wide interpretation taking into
consideration of social, economic and political justice. We
are of the opinion that while deciding as to whether the
prohibition is reasonable, the Court has to take into
consideration the greater public and social interest as
against the fundamental right of the citizen. In (2003) 7
SCC 59 (Indian Handicrafts Emporium v. Union of India),
the Hon’ble Supreme Court has held that prohibition of
trade in ivory does not offend Article 19(1)(g) and the same
is a reasonable restriction under Article 19(6) of the
Constitution. It is also to be noted only sand is prohibited
from taking outside the State in view of the overwhelming
public interest. Therefore, we are of the opinion that the
definition of the word ‘regulation’ is wide enough to cover
the prohibition and movement of minerals outside the
State.
xx xx xx
16. Environmental Perspective
The said rule has been introduced in view of the attempt

made by the dealers of sand and contractors of building to
transport the sand purchased from the Government

outside the State. According to the Government, the said
rule has been made in public interest and also taking into
consideration of the hardship that caused to the
consumers in the State of Tamil Nadu as well as the high
rate of urbanisation in the State. In the counter affidavit, 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 has already undergone
various changes over thousands of years. As found by the
Expert Committee, due to over exploitation and
indiscriminate mining of river sand, the environment and
the eco-system got very much affected. The Expert
Committee has also found out that the indiscriminate
mining has resulted in deepening of the river beds,
widening of the rivers, damage of civil structures, depletion
of ground water table, degradation of ground quality,
damage to the rivers system and reduction of bio-diversity.
Therefore, what is important is to use the barest minimum
of sand for developmental activities. If the sand is allowed
to be transported due to the demands in various places
outside the State it would only increase the demand for
more sand. This in turn would affect the environment
seriously. Hence, one has to see the impact on the natural
resources. Whether it is authorized or not, legal or illegal
what is important is the conservation and protection of the
environment. The right to clean environment is a
guaranteed fundamental right under Article 21. Article 48-
A of the Constitution speaks about protection and
improvement of environment and Article 51(A) of the
Constitution deals with the fundamental duties to protect
and improve the natural environment including forest,
lakes, rivers and wild life. The Hon’ble Supreme has held
in (2003) 7 SCC 589 (Indian Handicrafts Emporium v.
Union of India) that the implementation of Directive
principle is within the expression of restriction in the
interest of general public. Hence, we hold that from the
environmental perspective also the impugned rule has to
be sustained.”
15) The Court also took aid of the doctrine of public trust as
enunciated in State of Tamil Nadu v. Hind Stone and Others3
3 (1981) 2 SCC 205

as well as T.N. Godavarman Thirumulpad v. Union of India
and Others4.
16) Mr. Pritesh Kapur, learned counsel appearing for the State of
Gujarat submitted in the first instance that scope of language
used in Section 15(1) of the MMDR Act was extremely wide as
per which the Parliament had delegated to the States entire
power to make rules for regulating the grant of quarry leases,
mining leases or other mineral concessions in respect of minor
minerals and for purposes connected therewith. According to
him, this Court, by a series of judgments, settled the following
propositions:
(i) The power to regulate under Section 15(1) is plenary and
the Parliament has delegated to the States complete control over
the subject matter, namely, minor minerals, especially in view of
the fact that power has been conferred for all purposes connected
with the regulation of the minor minerals.
(ii) This power is not exhausted by the grant and continues to
control activities even post grant.
(iii) In respect of minor minerals, Parliament has not retained
any control under the Act. Historically as well as under the 1957
Act, complete control over minor minerals has been delegated by
4 (2006) 1 SCC 1

Parliament to the State Government since these minerals have
always been viewed as being important for local development.
17) To support the above plea, he invited the attention of this Court to
the judgment in D.K. Trivedi & Sons and Others v. State of
Gujarat and Others5 wherein this Court considered the power of
the State Governments to make rules under the said Section 15
to enable them to charge dead rent and royalty in respect of
leases of minor minerals granted by them and to enhance the
rates of dead rent and royalty during the subsistence of such
leases – a power exercised by the State to govern conditions
subsequent to the grant of the lease. After tracing the legislative
history in respect of minor minerals, it was observed that by virtue
of the Act the whole of the field was taken over by Parliament and
thereafter all powers in respect of minor minerals had been
delegated to the State Governments. The Court also observed,
inter alia, that the power to regulate minor minerals under Section
15 is extremely wide; that control over minor minerals fell
exclusively within the domain of the State Governments; that
minor minerals have historically been viewed by the Legislature,
both pre and post Independence, as being for the use of local
areas and local purposes; and it is left to the State Governments
5 1986 Supp SCC 20

to prescribe such restrictions as they think fit by rules made under
Section 15(1).
18) From the above judgment, his line of action was that if the power
of regulation permits the States to utilise the minor minerals for
the benefit of the State through its own agency, it would
necessarily also encompass the power to ensure that even
private parties utilise the sand within the State as a condition of
the lease. Furthermore, the argument that sub-section (1) of
Section 15 is for regulating the grant of leases and other mineral
concessions in respect of minor minerals and that rules under
that sub-section can be made only with respect to the time when
such leases or concessions are granted and not with respect to
any point of time subsequent thereto, was specifically considered
and rejected in the case of D.K. Trivedi & Sons.
19) Mr. Kapur also argued that a three Judge Bench of this Court in
Uttar Pradesh Power Corporation Limited v. National Thermal
Power Corporation Limited and Others 6 has reiterated the view
that the power of regulation conferred upon an authority is not
spent or exhausted with the grant of permission. He relied upon
the judgments in Hind Stone and K. Ramanathan v. State of
6 (2009) 6 SCC 235

Tamil Nadu and Another7 wherein this Court reiterated that the
word ‘regulate’ must be given the widest amplitude. He submitted
that in K. Ramanathan’s case this Court was considering the
validity of an order issued by the State Government under the
Essential Commodities Act banning the transport of paddy
outside the State. In that context, this Court has observed that:
"19...At the same time, the power to regulate carries with it

full power over the thing subject to regulation and in
absence of restrictive words, the power must be regarded
as plenary over the entire subject...The power to regulate
implies the power to check and may imply the power to
prohibit under certain circumstances, as where the best or
only efficacious regulation consists of suppression…
xx xx xx
23...One of the ways in which such regulation or control

over the production, supply and distribution of, and trade
and commerce in, an essential commodity like foodstuffs
may be exercised is by placing a ban on inter-State or
intra-State movement of foodstuffs to ensure that the
excess stock of foodstuffs held by a wholesale dealer,
commission agent or retailer is not transported to places
outside the State or from one district to another with a view
to maximise the procurement of such foodstuffs from the
growers in the surplus area for their equitable distribution
at fair prices in the deficit areas. The placing of such ban
on export of foodstuffs across the State or from one part of
the State to another with a view to prevent outflow of
foodstuffs from a State which is a surplus State prevents
the spiral rise in prices of such foodstuffs by artificial
creation of shortage by unscrupulous traders...These are
nothing but regulatory measures.”
20) Mr. Kapur further submitted that the above observations and the
expansive interpretation given to the power of regulation in both
7 (1985) 2 SCC 116

the aforesaid cases have been approved by a Constitution Bench
of this Court in U.P. Cooperative Cane Unions Federations v.
West U.P. Sugar Mills Association and Others 8. In this case,
the Constitution Bench was considering the competence of the
State Government to fix the State advised price for purchase of
sugarcane by an occupier of a sugar factory over and above the
minimum price fixed by the Central Government. The relevant
section, i.e. Section 16, also provided merely a power of
regulation and the power to provide for terms and conditions and
did not grant the power to fix prices. Discussing that aspect, it
was observed as under:
"...”Regulate” means to control or to adjust by rule or to

subject to governing principles. It is a word of broad
impact having wide meaning comprehending all facets not
only specifically enumerated in the Act, but also embraces
within its fold the powers incidental to the regulation
envisaged in good faith and its meaning has to be
ascertained in the context in which it has been used and
the purpose of the statute.”
21) On the basis of the aforesaid judgments, submission of Mr. Kapur
was that this Court has consistently held that power to regulate
was of widest amplitude and, therefore, it would encompass
power to regulate the movement of minor minerals as well,
including the condition not to transport the excavated sand
outside the State of Gujarat in the lease itself. He submitted that

8 (2004) 5 SCC 430

this Court in State of Tamil Nadu v. M.P.P. Kavery Chetty9 held
that there is no power conferred upon the State Government
under the MMDR Act to exercise control over the minor minerals
after they have been excavated. His submission was that this is
the only judgment which has taken discordant note and while
deciding this, the earlier judgment in D.K. Trivedi & Sons was
not brought to the notice of the Court.
22) Another submission of Mr. Kapur was that power to frame such a
rule can be traced to Section 15(1A)(d) of the MMDR Act. This
section empowers the State Government to impose conditions in
a mining lease and, therefore, would include the power to impose
all such conditions as flown from the ownership of the minerals.
Since it is the State Government which is the ‘owner of the
minerals’ and the minerals that ‘vest’ in it, as held in Amritlal
Nathubhai Shah and Others v. Union Government of India
and Another10, while granting the licence, it can put conditions
pertaining to movement and flow of such minerals as well. He
also took support from the following observations in Monnet
Ispat and Energy Limited v. Union of India and Others11:
"86...The judgment of this Court in Amritlal Nathubhai

Shah establishes the distinction between the power of
9 (1995) 2 SCC 402

10 (1976) 4 SCC 108
11 (2012) 11 SCC 1

reservation to exploit a mineral as its own property on the
one hand and the regulation of mines and minerals
development under the 1957 Act and the 1960 Rules on
the other. The authority of the State Government to make
reservation of a particular mining area within its territory for
its own use is the offspring of ownership; and it is
inseparable therefrom unless denied to it expressly by an
appropriate law by the 1957 Act that has not been done by
Parliament. Setting aside by a State of land owned by it
for its exclusive use and under its dominance and control,
in my view, is an incident of sovereignty and ownership.”
23) in any case, argued Mr. Kapur, power to frame the impugned rule
is conferred by Section 23-C of the MMDR Act as well. According
to him, it would be erroneous to contend that the word ‘illegal’
occurring in Section 23-C (1) must qualify the words
‘transportation and storage’ as well. In any event, there are no
such qualifying words in sub-section (2)(c) which grants a power
‘without prejudice’ to sub-section (1). Therefore, the two sub-
sections must be construed independently and neither can cut
down the width of the other.
24) He also argued that while construing a similar power to regulate
transport of forest produce, this Court upheld a rule prohibiting
transport beyond the borders of the State in the case of State of
Tripura and Others v. Sudhir Ranjan Nath12 in the following
words:
12 (1997) 3 SCC 665

"...The object of the Act is to preserve and protect the
forest wealth of the country and to regulate the cutting,
removal, transport and possession of the forest produce in
the interest of the States and their people. It is for
achieving the above purpose that the Act provides for
declaration of reserve forests, formation of village forests
and declaration of protected forests. It is for achieving the
very purpose that the Act vests, in the Government, control
over forest and lands not being the property of the
Government and controls even the collection and
movement of drift and stranded timber. It is not a taxing
enactment but an enactment designed to preserve, protect
and promote the forest wealth in the interests of the nation.
It must necessarily take within its fold catering to the needs
of the people of the State and that is what sub-rule (8)
provides. In our opinion, therefore, sub-rule (8) of Rule 3
is perfectly valid.”
25) Last submission of Mr. Kapur was that once it becomes clear that
power to regulate minor minerals conferred upon the State
Government would include power to regulate its movements as
well, there was no question of treating the same as violative of
Article 301 of the Constitution. For this purpose, he relied upon
certain judgments of this Court. Referring to the case of Hind
Stone, he submitted that in that case the Court specifically held
that regulatory measures or measures imposing compensatory
taxes for the use of trading facilities do not come under the
purview of restrictions contemplated by Article 301. Likewise,
according to him, in Sudhir Ranjan Nath’s case, this Court had
held that once a provision made by the State as the delegate of
Parliament to carry out the purposes of the Act is saved by Article

302, it will not be hit by Article 301. Such a rule, therefore, would
not offend the principle of federalism.
26) Having regard to the fact that it is the Union which can regulate
and control the minerals in this country and States exercise
power of minor minerals as delegates of the Union, this Court had
deemed it fit to issue notice of these proceedings to Union of
India as well in order to elicit its stand on this issue. The Union of
India has filed its reply, taking a specific stand that there is no
such power to frame rule like 44-BB of the 1966 Rules or Rule 71
of the 2010 Rules. Ms. Madhavi Divan, learned Additional
Solicitor General, appeared for Union of India and pitched the
case to even a higher level. Her argument was that there is no
such power even with the Union of India to frame rules of the
nature impugned in these proceedings as these would be
offensive of Article 301 of the Constitution. Therefore, under no
circumstances, such a power can vest with the State
Government. She argued that Section 15 which empowers the
State Government to make rules in respect of minor minerals
does not extend to the regulation of already excavated minor
minerals under the terms and conditions of a mining lease. This
is made clear by the three Judge Bench in M.P.P. Kavery Chetty

wherein this Court upheld the striking down of rules made by the
State Government to fix minimum price for the sale of granite
after its excavation. The Court emphatically held that the State
Government had no power under Section 15 of the MMDR Act to
exercise to control over minor minerals after they had been
excavated. The power under Section 15 was restricted and did
not empower the State to control the sale or sale price of minor
minerals once they had been mined. The latter judgment has
been followed in another three Judge Bench judgment in K.T.
Varghese & Ors. v. State of Kerala & Ors.13. In the latter case,
one of the impugned conditions of the license was that minerals
could be sold only within the State of Kerala, that too for domestic
and agricultural purposes. The same was found impermissible.
She also submitted that there is no conflict whatsoever between
the judgments of this Court in Amritlal Nathubhai Shah and
D.K. Trivedi & Sons on the one hand and M.P.P. Kavery Chetty
on the other. Her contention was that in Amritlal Nathubhai
Shah, while it was emphatically stated that the State Government
is the ‘owner of minerals’ within its territory and minerals vest in it,
this was held in the context of a challenge to the reservation by
the State Government of certain areas of exploitation of bauxite in
13 (2008) 3 SCC 735

the public sector. Private parties challenged the notification to
that effect and the Central Government to whom they applied for
revision held that the minerals vested in the State Government
which was its owner and that the State Government had the
inherent right to reserve any area for exploitation in the public
sector. She did not quarrel with such a proposition. However, her
caveat was that this was a matter where there were no leases in
favour of private parties but rather the private parties were
petitioning the government for the grant of leases.
27) Likewise, in D.K. Trivedi & Sons, this Court held that minor
minerals are used mostly in local areas and for local purposes
while minerals other than minor minerals are those necessary for
industrial development on a national scale. She submitted that it
is totally different proposition. She also pointed out that in the
said case the finding that the State Government could enhance
dead rent even during the subsistence of a lease has no
application in the present case. Such observations of this Court in
D.K. Trivedi & Sons were in the context of enhancement of dead
rent which is collected as a fixed amount in consideration for the
grant of the lease by the lessor apart from royalty and is
incidental to the regulation and development of mines and

minerals which is avowed object of the MMDR Act as stated in its
Preamble. But, in the present case, what is sought is a blanket
prohibition of the sale of minor minerals beyond the borders of the
State of Gujarat. She argued that on the other hand, both M.P.P.
Kavery Chetty and K.T. Varghese were matters wherein what
was sought to be controlled post grant of lease was the sale of
the excavated minerals. Such restrictions were found to be
beyond the powers granted to the State as a delegate of
Parliament and were accordingly struck down.
28) The learned Additional Solicitor General also rebutted the
argument of the appellants that power to regulate would
encompass power to restrict the movement beyond the State.
She argued that while it is well settled that the expression
‘regulation’ has many shades of meaning and can refer to
prohibition (Sudhir Ranjan Nath and Hind Stone), the issue in
the present case is whether a prohibition on the transportation of
legally mined materials can be imposed under the provisions of
the MMDR Act. There is no doubt that a prohibition can be
imposed on mining under certain circumstances or on the grant of
leases under the aforesaid Act but not on transportation de hors
illegal mining.

29) In this hue, the learned ASG submitted that Section 23-C was
inserted with specific object to curb ‘illegal mining’. Therefore, the
words ‘transportation’ and ‘storage’ occurring therein would take
their colour from the expression ‘illegal mining’ on the principle of
noscitur a sociis. That was clear from the Statement of Objects
and Reasons as well. On the aforesaid basis, Ms. Divan
submitted that the High Court rightly concluded that there was
lack of power with the State Government to make such a
provision which could neither be traced to Sections 15, 15(1A) or
23 of the MMDR Act.
30) The learned Additional Solicitor General additionally argued that
there was no question of public interest as well. On this aspect,
her contention was that Parliament was wholly conscious of the
environmental concerns impacted on account of mining activity,
which concern is reflected in Section 4A of the MMDR Act. This
provision provides for termination of prospecting licenses or
mining leases on account of expediency in the interest of, inter
alia, reservation of the natural environment and conservation of
mineral resources. Further, Section 18 provides that it shall be the
duty of the Central Government to take all such steps as may be
necessary for the conservation and systematic development of

minerals in India and for the protection of environment by
preventing or controlling any pollution which may be caused by
prospecting mining operation. In this regard, the Central
Government is empowered to make rules as it thinks fit. In other
words, there are specific provisions empowering the Central
Government to make rules in respect of conservation of minerals
in the interest of the environment.
31) Ms. Divan also argued that the impugned rules are violative of
Article 301 of the Constitution as they seek to fetter the freedom
of trade, commerce and intercourse. Highlighting the purpose
behind Part XIII of the Constitution which starts with Article 301,
she emphasised that it was to achieve economic integration.
Further, balancing development and economic equality of the
country is equally vital facet of economic integration, stressed the
learned Additional Solicitor General. She referred to various
judgments of this Court on the aforesaid aspects and concluded
her submissions with the submission that the conclusion of the
High Court in the impugned judgment was correct on this aspect
as well.
32) Mr. D.N. Ray, Advocate, appeared on behalf of the private
respondents and made his submissions almost on the same lines

as argued by the learned Additional Solicitor General. Therefore,
it is not necessary to repeat the same.
33) We have give our due consideration to the arguments advanced
by the counsel for the parties on both sides.
34) From the subject matter of these appeals as well as arguments
noted above, it clearly follows that the main issues that arise for
consideration are as under:
(a) Whether the impugned rules framed by the State of Gujarat
as a delegate of Parliament are beyond the powers granted to it
under the MMDR Act? In other words, whether the impugned
rules are ultra vires Sections 15, 15A and 23-C of the MMDR Act?
(b) Whether the impugned rules are violative of Part XIII of the
Constitution of India?
35) The appellants have submitted that Section 15 gives such a
power. Sub-section (1) of Section 15 empowers the State
Government to make rules for ‘regulating’ the grant of quarry
leases, mining leases or other concessions in respect of minor
minerals and for the purposes connected therewith. This power
of regulation pertains to granting of leases. It is the submission of
Mr. Kapur that the expression ‘regulating’ is of widest amplitude

and would, therefore, confer power to make the rules of the
nature made herein. He has referred to various judgments of this
Court wherein the expression ‘regulating’ has been explained.
He has also submitted that in any case under Section 15(1A)
such a power is there and this provision has to be read
independent of Section 15(1).
36) It is difficult to accept the aforesaid contention in view of the
judgments of this Court in M.P.P. Kavery Chetty and K.T.
Varghese. In those judgments, it has been categorically held
that power of the State Government under Section 15 of the
MMDR Act does not include control over minor minerals after they
are excavated. Following observations from the said judgment
are extracted herein:
"19. The High Court quashed Rules 8-D and 19-B

principally on the ground that Section 15 of the said Act
gave no power to the State Government to frame rules to
regulate internal or foreign trade in granite after it had
been quarried. Section 15 also did not empower the State
Government to frame rules to enable a State Government
company or corporation to fix a minimum price for granite.
20. Learned counsel for the appellant State submitted that

Rules 8-D and 19-B were valid having regard to the
Preamble of the said Act and Section 18 thereof. He
submitted that the rule-making power of the State under
Section 15(o) was wide enough to encompass Rules 8-D
and 19-B.
21. The said Act is enacted to provide for the regulation of

mines and the development of minerals under the control
of the Union. Section 2 of the said Act declares that it is

expedient in the public interest that the Union should take
under its control the regulation of mines and the
development of minerals to the extent provided in the said
Act. Section 13 empowers the Central Government to
make rules for regulating the grant of prospecting licences
and mineral leases in respect of minerals and for purposes
connected therewith. Sub-section (1) of Section 15
empowers the State Government to make rules for
regulating the grant of quarry leases, mining leases and
other mineral concessions in respect of minor minerals
and for purposes connected therewith. Sub-section (1-A)
of Section 15 states that such rules may provide for the
matters set out therein, namely, the person by whom and
the manner in which an application for a quarry lease,
mining lease and the like may be made; the fees to be
paid therefor; the time and the form in which the
application is to be made; the matters which are to be
considered where applications in respect of the same land
are received on the same day; the terms and conditions on
which leases may be granted or regulated; the procedure
in this behalf; the facilities to be afforded to lease-holders;
the fixation and collection of rent and other charges and
the time within which they are payable; the protection of
the rights of third parties; the protection of flora; the
manner in which leases may be transferred; the
construction, maintenance and use of roads, power
transmission lines, etc. on the land; the form of registers to
be maintained; reports and statements to be submitted
and to whom; and the revision of any order passed by any
authority under the said Rules. Clause (o) of sub-section
(1-A) reads “any other matter which is to be or may be
prescribed”. Section 18 of the said Act states that it shall
be the duty of the Central Government to take all such
steps as may be necessary for the conservation and
systematic development of the environment by preventing
or controlling any pollution which may be caused by
prospecting or mining operations.
22. Rules 8-D and 19-B empower the State Government or

its officers or a State Government company or corporation
as the State Government may direct to control the sale by
every permit-holder of quarried granite or other rock
suitable for ornamental or decorative purposes. They also
empower the State Government or its officers or a State
Government company or corporation, as the case may be,
to fix the minimum price for the sale thereof. The object, as
is shown by the terms of Government Order No. 214 dated

10-6-1992, quoted above, is to conserve and protect
granite resources.
23. It is difficult to see how granite resources can be

protected by controlling the sale of granite after its
excavation and fixing the minimum price thereof.
24. There is no power conferred upon the State

Government under the said Act to exercise control over
minor minerals after they have been excavated. The power
of the State Government, as the subordinate rule-making
authority, is restricted in the manner set out in Section 15.
The power to control the sale and the sale price of a minor
mineral is not covered by the terms of clause (o) of sub-
section (1-A) of Section 15. This clause can relate only to
the regulation of the grant of quarry and mining leases and
other mineral concessions and it does not confer the
power to regulate the sale of already mined minerals.”
37) Likewise, the condition of license granted by the State of Kerala
to the effect that it could be sold only within the Sate, that too for
domestic and agricultural purposes, was struck down in the
following words:
"3. The appellants' complaint is that certain conditions in

the form of restrictions have been incorporated while
issuing the licences. One of such conditions which the
appellants attack is that the minerals permitted to be
stocked were to be purchased only from authorised
quarrying permit-holders on that behalf. Another condition
is that they are permitted to sell the minerals only within
the State of Kerala, that too for domestic and agricultural
purposes. The appellants' complaint is that as far as
cooperative societies are concerned, they are not saddled
with any such restrictions imposed in the case of the
appellants. Thus, according to the appellants, there is a
clear discrimination between the cooperative societies and
the individuals in the matter of restrictions imposed in the
licences granted to them. Apart from that there is no legal
sanction for such restrictions.”

38) Argument of Mr. Kapur that M.P.P. Kavery Chetty did not
consider the earlier judgment in D.K. Trivedi & Sons is
misplaced. In this behalf, we entirely agree with the learned
Additional Solicitor General that judgment in D.K. Trivedi & Sons
and other judgments cited by Mr. Kapur are clearly
distinguishable as the context and the subject matters in those
cases were entirely different. It is not necessary to point out the
differences in two sets of cases, as we entirely agree with the
argument of Ms. Divan in drawing the distinction between the two
and pointing out that there is no conflict whatsoever. She is right
that the two sets of cases can be read harmoniously.
39) In the cases of Amritlal Nathubhai Shah, D.K. Trivedi & Sons
and Hind Stone, the measures in question had a direct nexus
with the grant or the refusal to grant a lease. In the instant
appeals, which concern the sale of already excavated minerals
that belong to the lessee, a prohibition by the State Government
on sale thereof outside the State is not permissible under the
MMDR Act. In the case of Hind Stone, this Court succinctly
stated the scope and ambit of the MMDR Act, highlighting that the
Act is aimed at the ‘conservation and the prudent and
discriminating exploitation of minerals’. Following passage from

the said judgment shows that as a method of regulation,
prohibition is clearly permissible, provided, however, that it has a
direct nexus with the conservation, exploitation and excavation of
minerals:
"10...The statue with which we are concerned, the Mines

and Minerals (Development and Regulation) Act, is aimed,
as we have already said more than once, at the
conservation and the prudent and discriminating
exploitation of minerals. Surely, 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. We have no doubt that the prohibiting of the
leases in certain cases is part of the regulation
contemplated by Section 15 of the Act.”
40) On the other hand, the prohibition on the transport or sale of the
already mined minerals outside the State has no direct nexus with
the object and purpose of the MMDR Act which is concerned with
conservation and prudent exploitation of minerals.
41) Insofar as Section 23-C of the MMDR Act is concerned, it was
inserted by the Amendment Act of 1999 with the objective to
prevent illegal mining. That is clearly spelled out in the Statement
of Objects and Reasons. We may reproduce a portion thereof
again:
"(iii) A new provision is proposed to be inserted in the Act

prohibiting transportation or storage or anything causing
transportation or storage of any mineral except under the
due provisions of the Act, with a view to preventing illegal

mining. Further, the Act is proposed to be amended to
cover the breach of the provisions of the proposed new
provision of the Act to be punishable. It is also proposed
to insert a new provision to provide for anything seized
under the Act as liable for confiscation under court orders.
A new section is proposed to be inserted to empower the
State Governments to make rules for preventing illegal
mining, transportation and storage of minerals and for
purposes connected therewith.
(emphasis supplied)”
42) It is in this context the words ‘transportation’ and ‘storage’ in
Section 23-C are to be interpreted. Here the two words are used
in the context of ‘illegal mining’. It is clear that it is the
transportation and storage of illegal mining and not the mining of
minor minerals like sand which is legal and backed by duly
granted license, which can be regulated under this provision.
Therefore, no power flows from this provision to make rule for
regulating transportation of the legally excavated minerals.
43) As far as Issue No. (b) above is concerned, we are also of the
considered opinion that the impugned rules violate Part XIII of the
Constitution as the effect thereof is to fetter the freedom of trade,
commerce and intercourse under Article 301 of the Constitution.
Under this Article, the expression ‘freedom’ must be read with the
expression ‘throughout the territory of India’. Under Article 302,
Parliament may impose restrictions on the freedom of trade,

commerce or intercourse between one State and another as may
be required in the public interest. The expression ‘public interest’
may include a regional interest as well. However, Article 302 is
qualified by Article 303 which prohibits Parliament and the State
Legislatures from making any law that gives preference to one
State over another or discriminates between one State and
another. Situations of scarcity are to be dealt with by Parliament
under Article 302(2). The power of State Legislature to impose
reasonable restrictions on the freedom of trade, commerce or
intercourse, as may be required in the public interest, requires
such a Bill or amendment to be moved in the State Legislature
only after receiving previous sanction from the President. The
President, being the head of the State and the guardian of the
federation, must be satisfied that such a law is indeed required
and, thus, acts as a check on the promotion of provincial interests
over national interest. Going by the aforesaid scheme of this
Chapter, it becomes apparent that when there are such
restrictions on a State Legislature, then the State Government
could not have imposed such a prohibition under a statute whose
object is to regulate mines and mineral development, and not
trade and commerce per se.

44) That apart, we find force in the submission of the learned
Additional Solicitor General that Part XIII of the Constitution is a
code on checks and balances on the legislative power intended to
achieve the objective of economic integration of the country. This
was emphasised in Video Electronics Pvt. Ltd. & Anr. v. State
of Punjab & Anr.14 wherein this Court held:
"20. ...In our opinion, Part XIII of the Constitution cannot

be read in isolation. It is part and parcel of a single
constitutional instrument envisaging a federal scheme and
containing general scheme conferring legislative powers in
respect of the matters relating to List II of the Seventh
Schedule on the States. It also confers plenary powers on
States to raise revenue for its purposes and does not
require that every legislation of the State must obtain
assent of the President. Constitution of India is an organic
document. It must be so construed that it lives and adapts
itself to the exigencies of the situation, in a growing and
evolving society, economically, politically and socially. The
meaning of the expressions used there must, therefore, be
so interpreted that it attempts to solve the present problem
of distribution of power and rights of the different States in
the Union of India, and anticipate the future contingencies
that might arise in a developing organism. Constitution
must be able to comprehend the present at the relevant
time and anticipate the future which is natural and
necessary corollary for a growing and living organism.
That must be part of the constitutional adjudication. Hence,
the economic development of States to bring these into
equality with all other States and thereby develop the
economic unity of India is one of the major commitments
or goals of the constitutional aspirations of this land. For
working of an orderly society economic equality of all the
States is as much vital as economic unity.”
14 (1990) 3 SCC 87

Freedom of movement of goods, services and the creation
of a common market must be understood contextually and as
necessary for creating an economic union.
45) It is also rightly contended by all the respondents that balanced
development of the country is an equally vital facet of economic
integration. No doubt, Part XIII permits some forms of
differentiation, for example, to encourage a backward region or to
create a level playing field for parts of the country that may not
have reached the desired level of development. In this context,
Part XIII envisions a two-fold object: (i) facilitation of a common
market through ease of trade, commerce and intercourse by
erasing barriers; and (ii) Regulations (or restrictions) which may
have the effect of differentiating between States or regions which
may be necessary not only in emergent circumstances of scarcity
etc. or but even for development of economically backward
regions or otherwise justified in the public interest. That Part XIII
is not about “freedom” alone but is a code of checks and
balances, intended at achieving economic unity and parity. Such
a desired objective for economic integration through checks and
balances was also articulated in Video Electronics Pvt. Ltd.:
"36. ...Economic unity is a desired goal, economic

equilibrium and prosperity is also the goal. Development
on parity is one of the commitments of the Constitution.

Directive principles enshrined in Articles 38 and 39 must
be harmonised with economic unity as well as economic
development of developed and under developed areas. In
that light on Article 14 of the Constitution, it is necessary
that the prohibitions in Article 301 and the scope of Article
304(a) and (b) should be understood and construed.
Constitution is a living organism and the latent meaning of
the expressions used can be given effect to only if a
particular situation arises. It is not that with changing times
the meaning changes but changing times illustrate and
illuminate the meaning of the expressions used. The
connotation of the expressions used takes its shape and
colour in evolving dynamic situations. A backward State or
a disturbed State cannot with parity engage in competition
with advanced or developed States. Even within a State,
there are often backward areas which can be developed
only if some special incentives are granted. If the
incentives in the form of subsidies or grant are given to
any part of (sic or) units of a State so that it may come out
of its limping or infancy to compete as equals with others,
that, in our opinion, does not and cannot contravene the
spirit and the letter of Part XIII of the Constitution.
However, this is permissible only if there is a valid reason,
that is to say, if there are justifiable and rational reasons
for differentiation. If there is none, it will amount to hostile
discrimination….”
46) In order to justify any ‘preference’ or ‘discrimination’ under Article
303, a scarcity of goods would have to be made out. It is a
matter of record that the Study Group’s report on which reliance
is placed by the appellant focuses on the need to restrict the
export of sand outside India and not within India. In any case,
nothing prevents the appellant from restricting the quantum of
sand being excavated. However, once the appellant State
permits sand to be excavated, neither can it legally restrict its
movement within the territory of India nor is the same

constitutionally permissible. Likewise, there is no restriction on
the State importing sand from other states. If it is the case that
the demand of any State is not being met, it may purchase sand
from other states. In any event, the market will dictate trade in
sand inasmuch as it may make no business sense for mining
company to transport and sell its sand in a far away destination
after incurring large costs on transportation.
47) We, thus, answer both the questions against the appellants.
48) As a result, we do not approve the view of Andhra Pradesh High
Court and Madras High Court. Rather, we affirm the impugned
judgment of the Gujarat High Court and dismiss these appeals.
.............................................J.
(A.K. SIKRI)
.............................................J.
(S. ABDUL NAZEER)
.............................................J.
(M.R. SHAH)
NEW DELHI;
MARCH 01, 2019

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 10373 – 10374 OF 2010

STATE OF GUJARAT AND OTHERS ETC. .....APPELLANT(S)

JAYESHBHAI KANJIBHAI KALATHIYA ETC. .....RESPONDENT(S)

Two writ petitions were filed in the High Court of Gujarat

under Article 226 of the Constitution of India. One writ petition

was filed by a single person (respondent herein) who had been

awarded contract for one year to extract, collect, gather and

mineral, it is the State Government which is empowered to grant

such leases. After the excavation of sand, a part there of was

Signature Not Verified

petition was filed by ten petitioners (respondents in the second

Civil Appeal Nos. 10373-10374 of 2010 Page 1 of 41

sand after buying it from leaseholders. The process involves

washing, cleaning and mixing fly ash to convert it into IS-Zone-2-

Sand, which is then sold in 50 kg. Bags under a brand name.

These respondents supply that sand to builders in the State of

2) As is clear from the aforesaid facts, sand, after processing, is sold

outside the State of Gujarat. The challenge laid in the writ

petitions was against the Resolution No. GMR-102010-1-S-CHH

dated May 04, 2010 whereby all leaseholders, stockists, traders

and exporters were prohibited from exporting ordinary sand

excavated from the areas in the State of Gujarat to other States

within the country or other countries by transporting such sand

pending consideration, the Government of Gujarat issued a

Notification on June 11, 2010 thereby amending the Gujarat

Minor Mineral Rules, 1966 by making the Gujarat Minor Mineral

(Amendment) Rules, 2010 with the insertion of Rule 44-BB, with

immediate effect. This amendment was done in purported

exercise of powers conferred under Section 15 read with Section

23-C of the Mines and Minerals (Development and Regulation)

Civil Appeal Nos. 10373-10374 of 2010 Page 2 of 41

Rule 44-BB, movement of sand beyond the border of the State of

Gujarat was prohibited. Rule 44-BB reads as under:

"No movement of sand shall be allowed beyond the border

Gujarat also notified the Gujarat Minor Mineral Concession Rules,

2010 so as to repeal the Gujarat Minor Mineral Rules, 1966. Rule

the same is as under:

"Rule 71. Prohibition to transport sand beyond border.

4) This led the respondents to amend the writ petitions thereby

incorporating challenge to Rule 44-BB of Amendment Rules as

well as Rule 71 of the Concession Rules. The High Court has,

vide impugned judgment, allowed the writ petitions and struck

Civil Appeal Nos. 10373-10374 of 2010 Page 3 of 41

and cannot be stretched to empower the State Government to

make Rules directly prohibiting movement of mineral so as to

impinge upon the freedom guaranteed by Article 301 of the

Constitution. It may be noted here itself that a Division Bench of

the Andhra Pradesh High Court in C. Narayana Reddy and etc.

v. Commissioner of Panchayat Raj and Rural Employment,

A.P., Hyderabad and others1 had taken a contrary view.

its judgment dated April 27, 2009 in D. Sivakumar v.

Government of Tamil Nadu2 by taking similar view as that of the

Andhra Pradesh High Court. In the impugned judgment, the

Gujarat High Court has, however, differed with the Andhra

Pradesh and Madras High Courts. Having regard to the

conflicting opinion of the High Courts, leave was granted in this