STATE OF GUJARAT AND OTHERS ETC. versus JAYESHBHAI KANJIBHAI KALATHIYA ETC.

Citation: [2019] 4 S.C.R. 96 · Decided: 01-03-2019 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed
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Judgment (excerpt)

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SUPREME COURT REPORTS
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STATE OF GUJARAT AND OTHERS ETC.
v.
JAYESHBHAI KANJIBHAI KALATHIYA ETC.
(Civil Appeal Nos. 10373-10374 of 2010)
MARCH 01, 2019
[A. K. SIKRI, S. ABDUL NAZEER AND M. R. SHAH, JJ.]
Mines and Minerals:
Minor minerals – Resolution by State Government prohibiting
export of ordinary sand excavated in the State, to other States and
to other countries – Thereafter State in exercise of powers conferred
u/s. 15 r/w s.23-C of MMDR Act amended Gujarat Minor Mineral
Rules by inserting r. 44-BB and thereby prohibited movement of the
sand beyond the State – Writ petition challenging the Resolution as
well as insertion of r. 44-BB – High Court allowed the petition – On
appeal, held: Section 15(1) does not empower the State Government
to make rules for regulating grant of quarry leases, mining leases
or other concessions in respect of minor minerals – No such power
flows from even s.23-C to make rule for regulating transportation
of the legally excavated minerals – Impugned Rules also violate
Part XIII of the Constitution as the effect thereof is to fetter the
freedom of trade, commerce and intercourse u/Art. 301 – In view of
scheme of Chapter XIII, State Government could not have imposed
such prohibition under a statute whose object is to regulate mines
and minerals development and not trade and commerce per se –
Mines and Minerals (Development and Regulation) Act, 1957 – ss.
15 and 23-C – Gujarat Minor Mineral Rules, 1966 – r.44-BB –
Constitution of India – Part XIII – Arts. 301, 302 and 303.
Dismissing the appeals, the Court
HELD: 1. Power of the State Government under Section
15 of the Mines and Minerals (Development and Regulation)
Act, 1957 (MMDR Act) does not include control over minor
minerals after they are excavated.  Therefore, it is not correct
that sub-section (1) of Section 15 of MMDR Act empowers the
State Government to make rules for ‘regulating’ the grant of
quarry leases, mining leases or other concessions in respect of
[2019] 4 S.C.R. 96
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minor minerals and for the purposes connected therewith. Section
23-C of the MMDR Act 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. The words
‘transportation’ and ‘storage’ in Section 23-C 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. [Paras 35, 36, 41 and 42][120-A-
D; 123-G; 124-C, D]
State of Tamil Nadu v. M.P.P. Kavery Chetty (1995) 2
SCC 402 : [1995] 1 SCR 441; K.T. Varghese & Ors. v.
State of Kerala & Ors. (2008) 3 SCC 735 : [2008] 1
SCR 1205  – relied on.
D.K. Trivedi & Sons and Others v. State of Gujarat and
Others (1986) Supp SCC 20 : [1986] SCR 479; Amritlal
Nathubhai Shah and Others v. Union Government of
India and Another (1976) 4 SCC 108 : [1977] 1 SCR
372  – distinguished.
2.1 The impugned rules also 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
STATE OF GUJARAT v. JAYESHBHAI KANJIBHAI KALATHIYA
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only after receiving previous sanction from the President.  The
President, being the head of the State and t
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