1 wp4830-10 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4830 OF 2010 Sagar Shramik Hatpati Walu Utpadak Sahakari Sanstha Maryadit ..Petitioner. Versus State of Maharashtra & Others ..Respondents. Mr.Rajiv Patil, Senior Advocate i/by Mr.Omkar Warange for the petitioner. Mr.Ravi Kadam, Advocate General with Mr.N.P. Deshpande, AGP for respondent Nos.1 and 2. CORAM : B.H. Marlapalle, & U.D. Salvi, JJ. DATE : 26th October 2010. P.C. : Further to our order dated 9th September 2010, the Government of Maharashtra through its Revenue and Forest Department had appointed a Committee headed by the Divisional Commissioner, Aurangabad and after taking into consideration the earlier Government Resolutions dated 3rd July 1998, 27th February 2001, 4th February 2003 and 5th September 2003 as well as the orders passed by this Court from time-to-time and the latest being the order dated 19th May 2010 in Writ Petition No.2374 of 2010, has framed a 2 wp4830-10 Policy for excavation of sand from nallahs, rivers and creeks all over the State of Maharashtra and with specific reference to the four districts of Konkan Region. The said policy has been translated into a Government Resolution dated 25th October 2010 and a copy of the said Government Resolution has been placed before us. The learned counsel for the petitioners were also provided with a copy of the said Government Resolution. 2. We have heard the arguments advanced by Mr.Walawalkar, Mr.Patil, Mr.Thorat, Mr.Khandeparkar and all other learned counsel appearing for the petitioners. 3. Mr.Kadam, the learned Advocate General has taken us through the policy details and submitted that all the suggestions made by the learned counsel for the petitioners do find place in the policy. He also submitted that the policy having been framed ought to be allowed to be implemented and in the course of its implementation, if there are any deficiencies pointed out or faced, the Government will address for suitable corrective mechanism or steps. So long as the policy has built-in measures to take care of all the stages involved in the excavation of sand, it should be allowed to be implemented and the stay order passed by this Court be vacated. It was also urged that once the policy is framed, nothing further would survive in this petition. 3 wp4830-10 4. Having given our anxious considerations to the policy so framed by the State Government vide Government Resolution dated 25th October 2010 and the suggestions made by the learned counsel for the respective parties, we are of the opinion that the policy has tried to address almost all the substantial issues and it provides for adequate measures to ensure that in the process of excavation of sand, there is no damage to the river flow, streams and the environment. The Policy has tried to plug the loopholes by and large and it also seeks to make the government machinery accountable for its implementation. A special feature of this Policy is the involvement of Village Panchayats and allocation of some revenue to these local bodies from the royalty collected, so as to provide for the maintenance of roads, public health etc. The penal provisions set out in the Policy will be tested during the course of its implementation and they appear to be effective. 5. Though the new policy tries to streamline the process of survey, tendering, monitoring, vigilance, commercial discipline and fixing accountability on the Government officials while providing for penal provisions against the erring contractors, we deem it appropriate to add some more measures so as to make the policy more meaningful and effective, we direct that the excavation at any surface shall not exceed a depth of 2 meters but at the same time it shall not be more than 3 feet in the nallahs, canals, 4 wp4830-10 river bank, streams and the tributaries. The use of mechanised devices for extracting sand from the river surface or from underneath the water in the creeks and rivers is an issue, we suggest, that the Government may consider as a part of clause 11(c) of the policy and it should not be left at the Collector’s level to decide the same, as has been envisaged in the policy and we are suggesting this because we are satisfied that the extraction of sand from underneath the water by any mechanical devices including automatised spats, suction pumps or dredgers should not be ordinarily allowed. 6. We have also noted that in clause 4(b)(c), there is a deeming provision which has been incorporated. On the face of it, it appears to be vulnerable however Mr.Kadam, the learned Advocate General urged before us that let the policy be implemented by the State Government as it is and if over a period of time it is noticed or brought by to the attention of the Government that the deeming provision has adverse effect or it has been misused or misinterpreted, the State Government will take corrective steps. In short, the Government is always open for taking corrective steps. 7. The Policy envisages recording of the registration, details of the transportation vehicles like trucks, boats and barges etc. It would be necessary for the officers concerned to record the capacities of the boats as well as the barges which are involved in transportation of sand through the sea or creeks or rivers, so that the excavated sand quantity is rightly recorded 5 wp4830-10 and the Government does not loose its revenue on royalty. The Tahasildar responsible for each location must submit the excavation report to the Collector once in a week and there shall be no excavation of sand on every second and fourth Sunday. On such off-days, the Tahasildar concerned must inspect each site and submit his written report to the Collector. 8. The learned counsel for the Maharashtra Pollution Control Board referred to the Circular dated 20th February 2008 and pointed out that even in the Initial Survey Committee, a representative of the said Board should be added. This was also supported by Mr.Walawalkar, the learned Senior Counsel. However, Mr.Kadam the learned Advocate General pointed out that in every case clearance from the Maharashtra Pollution Control Board is not required and it depends on each case. We, therefore, suggest that the Board approaches the Department of Revenue and Forest, Government of Maharashtra for issuance of a Circular for its association in the Initial Survey Report in specific cases. We also direct that a copy of the Initial Survey Report made by the Committee of four Officers as envisaged in clause 4(a) of the policy, be made available to the concerned Village Panchayat so as to facilitate them to take expeditious decisions in the gramsabha. 9. The policy also envisages that some amount from the 2/3rd of the royalty amount collected by the Government shall be allocated to the concerned Village Panchayat. We have been assured by the learned Advocate 6 wp4830-10 General that the High Power Committee, headed by the Chief Minister will consider the requests of the Village Panchayats so as to allocate upto 50% of the balance of 2/3rd revenue collected by way of royalty, from the locations within their respective jurisdictions and to spend on improvement of roads and health facilities. 10. Though the Policy envisages criminal action against the erring contractors including prosecution for the offences punishable under Section 379 of the Indian Penal Code and also under the MCOC Act of these contractors or persons or agents, who resort to physical attacks on the Revenue Officials, in our view it would be expedient to consider amending the Maharashtra Land Revenue Code, Mines and Mineral Act, Bombay Mine and Mineral Rules, as the case may be, so as to provide for more stringent penal provisions against all those who excavated sand in breach of Part III of the policy and resort to physical attacks on the Revenue officials. At the same time every Tahasildar at the taluka level must be held to be accountable and the Collector at the district level for the successful implementation of the policy now framed by the State Government. We direct that each District Collector will issue appropriate instructions for the effective implementation of this policy. 11. As the State Government has applied its mind to the existing deficiencies and brought out a mechanism for excavation of sand so as to 7 wp4830-10 ensure that it does not cause any damage to the river banks, streams and the land as well as environment, while ensuring that it generates reasonable revenue, its successful implementation solely depends on the Revenue officials, the cooperation of the Village Panchayats and the contractors commitment to abide by the terms and conditions of the policy. The policy appears to have dispel the fear of an emerging sand mafia and almost all the issues raised in this petition has been sought to be addressed to and provided for in the policy. 12. The petition has thus served its purpose and, therefore, the same deserves to be disposed off in terms of the new policy of the State Government. Hence, the petition is disposed off and the interim order passed by us on 23-09-2010 stands vacated. 13. A copy of this order be forwarded by the Principal Secretary, Revenue & Forest Department, Government of Maharashtra, Mantralaya, Mumbai to every District Collector. Writ to go to the Principal Secretary, Revenue & Forest Department, Government of Maharashtra, forthwith. (U.D. Salvi, J.) (B.H. Marlapalle, J.)