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TMI Blog2001 (4) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... of writ petitions, viz., WP Nos.4640 and 5405 of 2001 are filed by some agriculturists who own agricultural lands nearby the river-beds for a declaration that the action of the authorities is not taking steps to prevent the illegal operations of quarrying and transporting of sand from the river beds as illegal and unconstitutional and for a direction upon the respondents to take steps to stop quarrying the sand from the riverbeds or streams as the case may be. 4. The third category of writ petitions viz., WP Nos.22740 of 2000 and 4628 and 4639 of 2001 are filed by the land owners/ pattadars for a writ of mandamus directing the respondents not to interfere with the petitioners in removing and disposing of the sand accumulated in their lands and for a declaration that the action of the respondents in not taking steps to remove the sand from their lands as arbitrary and illegal. 5. Writ Petition No. 1270 of 2001 was, however, filed for a direction upon the respondents to extend the permission already granted to the petitioner for removal of the sand accumulated in his land and to transport the same and for a declaration that the action of the respondents in not taking steps to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and his rights under Articles 14 and 21 are violated. 9. In WP No.22740 of 2000, the petitioners, three in number, possess an extent of Ac.17.03 in Peddakandukur village, Yadagarigutta Mandal, Nalgonda District nearby Kandukuru vagu which flows through the village. Due to floods sand was accumulated and they were granted permission by the MRO as well as by the Gram Panchayat for lifting and transporting the sand. The respondents were, however, stopping their vehicles from quarry and transporting the sand. 10. The case of the petitioners in WP Nos.4628 and 4639 of 2001 is that they hold small extents of dry lands near Aleru vagu and Bikeru stream respectively in Mothkur Mandal, Nalgonda District and that due to floods and accumulated in their lands. They made representations on 22-9-2000 to the authorities to permit them to remove the sand accumulated, but no permission was granted. Their grievance is that unless the sand is removed they cannot cultivate the lands. 11. In WP No.1270 of 2001 of the District Collector granted permission to the petitioner for quarrying and lifting of sand accumulated in the land, which is situated near Kodgal village, Jadcherla Mandal, Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings dated 10-5-1999, it was directed: In the reference first read above, the telegraphical orders have been issued to all the Divisional Panchayat Officers and Extension Officers (Pts) in the District. With regard to stoppage of sand removal public auctions lease rights to protect the profile of ground water in Nalgonda District which is adversely affected due to lifting of sand from the water courses etc., vested in Gram Panchayats. In the reference 2nd read above, the District Collector (PW), Nalgonda has issued ban orders with regard to lifting of sand in the entire Nalgonda District under the circumstances explained therein except the Gram Panchayats listed in Annexure and where issue is under examination. In view of the above, the telegraphic orders issued through reference 1st read above with regard to stoppage of sand removal public auction lease rights are hereby withdrawn with immediate effect. Copies of the said orders had been communicated to all concerned including all Sarpanches of Gram Panchayats, Mandal Revenue Officers, Superintendent of Police, Nalgonda, Sub-Inspectors of Police and others. 14. Yet again, the District Collector by Circular let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful examination of the above, it is found necessary and expedient to modify the new sand policy and accordingly in supersession of the GO.8th read above, the following policy is introduced. (i) Sand bearing areas in Krishna and Godavari rivers along with their major like Tungabhadra having potential sand bearing areas shall be notified for auction of small reaches, preferably village-wise by the DM. and G. (ii) In all remaining areas in the State, the local bodies concerned if they so desire, can auction right for removal of sand and revenue so collected will remain with the local bodies concerned. (iii) Sand required for weaker section housing programmes and for Government schemes is exempted from payment of seignorage fee. (iv) Till revised sand policy is implemented, Director of Mines and Geology shall issue temporary permits to the existing lessees wherever leases have already expired or expiring before July, 1998. (v) Wherever ground water effect is noticed or safety or structure is effected, the Collector concerned will de-notify the mean in with Ground Water Department. (vi) No movement of sand shall be allowed across the borders to neighbouring States. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1966. The sale of sand shall be on the basis of auction-cum-tender system which denotes that offers of tenders shall be accepted while simultaneously holding auction with a view to maximize earnings. 19. It is a matter of grave concern that writ petitions had been filed by those purported permit/lease holders stating that some police officers had been interfering in transportation of sand although they hold valid quarry permits and interim orders had been issued by this Court in a number of writ petitions directing the respondents to allow the petitioners in those cases to continue to lift the sand or to undertake the quarry operations. In many of the cases, neither the State nor the Industries Department had been impleaded as parties. Even the Gram Panchayats concerned had not been impleaded as parties in some cases. In some cases, writ petitions have been filed on the alleged ground that quarry permits had been granted in terms of G.O. Ms. No.356, dated 22-11-1999 for a term of two years, although such quarry permits can be granted only on oral basis. 20. Several cases have come to the notice of the Court that Sarpanches themselves had issued quarry lease or permits and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isted before a Division Bench for hearing the matters in relation to environment and allied matters. 25. The power of the District Collector to impose such ban orders had not been disputed. Even though in terms of G.O. Ms. No.1, dated 1-1-2001 a detailed procedural had been laid down for holding auctions and despite holding auctions by the District Level Committee, the same would require the approval of the higher authorities. The Collector, in such cases, should not approve such auctions in a routine fashion. Due regard should be had to the ground situation existing in the area in respect of which permits had been granted. Absolutely, it is a matter of grave concern that although quarrying and lifting of sand from the river beds and streams is resulting in reduced percolation of water and depletion of ground water table in the nearby lands, a large number of permits had been granted in violation of law. Water level in some parts of the districts had gone down as high as ten metres below the level of 1998-99. People in general had been representing whereby the ban orders had been issued by the Collector. 26. Mrs. Sobha, learned Counsel appearing on behalf of the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reserved. (2) The State Government may, with the approval of the Central Government, reserve any area not already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government Company or Corporation owned or controlled by it and where it proposes to do so, it shall, by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. (3) Where in exercise of the powers conferred by sub-section (1A) or subsection (2) the Central Government or the State Government, as the case may be, undertakes prospecting or mining operations in any area in which the minerals vest in a private person, it shall be liable to pay prospecting fee, royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease. 29. Article 48-A of the Constitution of India reads thus: 48-A. Protection and improvement of environment and safeguarding of forests and wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that his action is environmentally benign. 31. The Precautionary Principle has been accepted as part of the law of the land. (See Jagannath v. Union of India, AIR 1977 SC 811). Though the above Precautionary Principles have been stated in the context of municipal law, in our opinion, the same can be made applicable where an environmental aspect concerns 'life'. In India where the majority of the people in villages depend on agriculture, depletion of ground water table will have an adverse affect on their living conditions and their very existence will be in jeopardy. If the indiscriminate quarrying and lifting of sand from the river-beds, streams particularly in villages is allowed to continue, the fertile lands will become sterile for scarcity of water and thereby the very survival of persons depending entirely on cultivation will be at stake and their right to live guaranteed under Article 21 of the Constitution of India will thus be infringed. 32. Water which is essential for the very existence of human living in this globe is the gift of nature and every human being has a share in it and the agriculturists who are the backbone of this country and who are by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been granted. But, they could not remove the sand within the time specified thereof, where-after they filed representations, which are pending. According to the learned Counsel for the petitioners, auction having been held by the authorised committee, the lease granted in their favour being a legal one, any prohibition to deal with the sand would amount to deprivation of property under Article 300-A of the Constitution of India. 36. The State, in their counter-affidavit, in some of the writ petitions, including WP Nos.4628, 4639 and 4640 of 2001, deny and dispute that any sand had been deposited in the pattadars' land. 37. The short question which arises for consideration would be as to what would be the status of a pattadar in relation to the sand which was deposited on their land? 38. The law, on this point, in our opinion, is absolutely clear. By reason of being a pattadar, they do not own any mineral, far less any minor mineral. Their estate have vested on the Government in terms of the provisions of Section 3-B of the A.P. Estates Abolition Act, 1948, which reads thus: 3. Consequences of notification of estate:--With effect on and from the notified dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State has no legislative competence even to make any law in this regard, far less grant any settlement except in terms of the provisions of the said Act, or the rules framed therein. Reference in this connection can be made to the decision of the Apex Court in Baijnath v. State of Bihar, , wherein the Apex Court held: .....It is open to Parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. ..... 40. The State, in exercise of its jurisdiction under Sections 15 and 15-A of the said Act, framed rules known as the A.P. Minor Mineral Rules. The said rules have been amended by reason of G.O. Ms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -soil and that there can be no minerals on the surface of the earth . 43. Yet again, the Apex Court in B. Dass v. State of U.P., , categorically held that a mining lease of prospecting licence must be obtained before 'winning of minerals' (extracting of minerals) is permitted. The pattadars have a right to claim their land, but, for the said purpose, they have to remove the sand and keep it at the corner of the land and ask the authorities to remove the same. They cannot be permitted to dispose of the same; their rights being confined to only carrying out agricultural operation. This aspect of the matter has been considered in Jagadish Chandra v. Kanai Lal, , wherein a Division Bench of the Patna High Court has referred to the earlier decisions in Kusum Kamini v. Jagdish Chandra, AIR (28) 1941 Pat. 13 and Purnendu Narain Singh v. Narendra Nath, AIR (30) 1943 Pat. 31 and held: 3. Upon these findings, it is clear to us that in accordance with the provisions of Section 21, Chota Nagpur Tenancy Act, as amended by Act XXV (25) of 1947, the defendant had no right whatsoever to manufacture the bricks which were not required for the domestic or agricultural purposes of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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