These appeals by special leave against the judgment dated 11.5.2004 of a Division Bench of the High Court of Madras in W.A. Nos. 3241-42/2003 and connected cases, relate to the validity and scope of Rule 38A of the Tamil Nadu Minor Mineral Concession Rules, 1959.
A public interest litigation (W.P. No. 985/2000) was filed in the Madras High Court, complaining about indiscriminate illicit quarrying of sand in riverbeds. The High Court issued certain directions to curb illicit quarrying while disposing of the said writ petition. A contempt petition (Contempt Application No. 561/2001) was filed complaining of non-implementation of the said directions by the State Government. In the said contempt proceedings, the High Court issued a direction to the State Government on 26.7.2002 to constitute a High Level Committee consisting of scientists, geologists and environmentalists to conduct a thorough scientific survey of the sand quarrying activities in rivers and riverbeds in the State and submit a report regarding the damage caused on account of indiscriminate illicit quarrying and to suggest the remedial measures. The High Court also suggested that a suitable regulatory legislation may be made by the State on the basis of the report of such Committee, and issued certain interim directions pending such legislation. On considering the extensive damages detailed in the said report, the State Government took a decision in public interest to stop quarrying of sand in Government lands and Ryotwari (private patta) lands by private agencies and take upon itself exclusively, all sand quarrying activities in the State. It is in this background, Rule 38A came to be inserted in the Rules by Notification dated 1.10.2003 with effect from 2.10.2003.
Immediately Writ petitions by lessees/permission holders challenging Rule 38A followed. On 8.10.2003, a Single Judge of the High Court granted an interim stay, until further orders or till the leases granted to the writ petitioners came to an end, whichever was earlier. Being aggrieved by the interim stay, the State Government moved the matter before a Division Bench — On appeal, the validity of Rule 38A was upheld but under certain conditions. Hence, the present petition. The State has challenged the judgment of the High Court in these appeals by special leave, being aggrieved by the conditions stipulated by the court while upholding the validity of Rule 38A. According to the State, the Rule ought to have been upheld unconditionally, so that there could be cessation of all quarrying activities relating to sand in the State by private agencies with effect from 2.10.2003. The question is whether Rule 38A ought to be upheld unconditionally or whether holders of existing leases (Government lands) and permissions (ryotwari lands) should be protected till the expiry or termination of their leases/permissions as per law, providing a reasonable opportunity of hearing to the aggrieved lease/permission holders. A delegated legislation, though legislative in character, will be invalid, on the ground of violation of principles of natural justice, if the enabling Act under which the delegated legislation is made, specifically requires observance of the principles of natural justice for doing the act. When the Act assures the Lessee the right to carry on mining operations during the entire period of lease and provides for termination only after giving a hearing, the delegate cannot, while making a rule in exercise of the power granted under the Act, make a provision for termination of all leases relating to a particular minor mineral, without giving an opportunity of hearing to the lease / permission holders. That part of Rule 38A which purports to terminate all leases forthwith, without notice or hearing to the lessees, does not conform to the object, scheme and the provisions of the Act under which it is made and therefore, invalid.
If a rule is partly valid and partly invalid, the part that is valid and severable is saved. Even the part which is found to be invalid, can be read down to avoid being declared as invalid. If Rule 38A is read down as terminating all mining leases granted by the Government by six months notice (in terms of clause 11 in the lease deeds based on the model form at Appendix 1 to the Rules) or for the remainder period of the lease, whichever is less, it can be save, as it will then terminate the leases after notice, in terms of the lease.