THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.810/2010 Dt.28-7-2010 1. P. Venu and others ..Petitioners V. 1. The Government of Andhra Pradesh, represented by its Secretary, Industries & Commerce (SPIU & SAND) Department, Secretariat Building, Hyderabad, and others. ..Respondents The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU WP No.810/2010 ORDER (per the Honourable Justice A.GOPAL REDDY) The petitioners, numbering three (3), filed this writ petition in the form of Public Interest Litigation, to declare the proceedings dt. 18- 12-2009 issued by the third respondent, namely, District Collector & District Magistrate, Guntur-cum-Executive Director, Andhra Pradesh State Housing Corporation Limited, Guntur, and consequential order of the fifth respondent, namely, Assistant Director of Mines & Geology- cum-Member Convener, District Level Committee for Sand Auctions, Guntur District, dt. 9-12-2009 allowing the contractors, who have been awarded government work, for transportation of sand from nearby reaches for enabling them to utilize the same for construction of Weaker Section Houses like Indiramma Houses at free of cost on every Tuesday at 25000 trippers per month under the supervision of Tahsildars concerned, as illegal, without jurisdiction and is in violation of A.P. Minor Mineral Concession Rules, 1966 (for short “ the Minor Mineral Concession Rules”). The third petitioner herein along with another earlier successfully ventilated the grievance of the villagers in cancelling the auction notified on 24-1-2008 and for grant of mining lease in Reach No.5 of Krishna River ie., Kollipara Sand Reach of Guntur District for the period from 24-3-2008 to 31-3-2009 and thereafter from 1-4-2009 to 31-3-2010 in WP No.9753/2009. The third respondent by letter dt.4-12-2009 informed the fifth respondent, namely, Assistant Director, Mines and Geology, Guntur that for completing 105554 houses, sand requirement approximately comes to 124527 trippers (6 cum capacity) under Indiramma programme both in rural and urban areas and requested him to take necessary action for supply of sand on every Tuesday as decided earlier at 25000 trippers under the supervision of Tahsildars concerned. Further the Panchayat Secretaries will ensure that sand is utilized by the beneficiaries for construction of houses under the said scheme only at village level. In turn, the fifth respondent by letter No.5622/Sand/2009 dt. 9-12-2009 called upon all the Tahsildars, Guntur District for issuance of transit coupons affixed with “Exemption of Seigniorage fee to Indiramma Housing Programme” and to allow sand transportation from all reaches under their personal supervision and Panchayath Secretaries at village level with the assistance of Assistant Engineer (Housing), who has to avoid illegal transportation of sand. The Tahsildars were also requested to furnish the sand transportation particulars of the preceding month to the third respondent and also to his office on or before 10th of every month in the proforma prescribed therein. On fifth respondent addressing a letter to the Tahsildars, the fifth respondent vide proceedings No.5622/Sand/2009 dt. 18-12-2009, in exercise of powers conferred under Rule 8 (i) of Andhra Pradesh Water, Land and Trees Act, 2002 (for short “APWALTA”) and Rules 11(5) and 23(1)(a) of Andhra Pradesh Water, Land and Trees Rules,2004 (for short “APWALT Rules, 2004”), for safeguarding the Government structures by completing the repairs on time bound basis, directed the Tahsildars to allow the Contractors, who have been awarded Government works, for transportation of sand from the nearby sand reaches duly collecting Rs.40/- towards seigniorage fee per each cubit meter of sand on every Tuesday as per the proceedings dt. 9-12-2009 issued earlier directing the Tahsildars to allow sand transportation for Government Engineering Works after obtaining data from the concerned authorities. The above proceedings are subject matter of challenge in the present writ petition contending that there is acute drinking water problem in Guntur District due to deficit rain fall from 2004 to 2009 except in 2007 and the ground water levels have fallen drastically for the reason of over exploitation of sand from the Banks of River Krishna. The second respondent, namely, Director, Department of Mines and Geology, Hyderabad, conducted a joint inspection to access the ground water in some of the identified sand reaches located at (1) Amaravathi-Dharanikota; (2) Pathuru; (3) Chirravuru; 4. Thullur; (5) Kollur-Juvvalapalem; and (6) Penumudi-Morthota of Guntur District in pursuance of the directions given by this Court and submitted a report stating that it is not feasible to conduct sand mining operations in the above sand reaches and in respect of other sand reaches, there is no survey/study conducted to examine the impact of sand mining on ground water regime. Surprisingly, the above proceedings dt.4-12-2009, 18-12-2009 and 9-12-2009 were issued allowing the contractors, who have been awarded Government Works, for transportation of sand from the nearby sand reaches and to utilize the same for construction of Indiramma Houses at a free of cost on every Tuesday without obtaining necessary clearances as are contemplated under Rule 9-B (6) of the Minor Mineral Concession Rules and therefore they are arbitrary, illegal and violative of the Minor Mineral Concession Rules. Power traced for issuance of impugned orders is as per Rule 11(5) and 23(1)(a) of APWALT Rules, 2004. Rule 23(1)(a) has no application and it does not confer any power on the third respondent. In spite of the orders passed by the Division Bench of this court in W.P.No.9753/2007 holding that obtaining of feasibility report and clearance from the Director, Ground Water Department and River Conservator respectively is a mandatory one under Rule 9-B(6) of the Minor Mineral Concession Rules and even for exercise of power under Rule 23 of APWALT Rules, 2004 prior clearance/report of the River Conservator and Ground Water Department is necessary. The third respondent without obtaining such report cannot permit for transportation of sand by the impugned orders and the same are liable to be set-aside. This court while issuing notice before admission on 25-1- 2010 suspended the impugned proceedings of respondents 1,3 and 5 and further restrained the respondents from lifting the sand from the river in dispute. A counter affidavit has been filed on behalf of the respondents 1 to 4, pursuant to the notice issued before admission, stating that the third respondent vide Lr. No.5622/Sand/2009 dt. 10-9-2009 has requested the Director, Ground Water Department, Hyderabad to give feasibility report for local use of sand, particularly, for the supply of sand to weaker section Housing Programme for effective implementation of “Indiramma Houses” in Guntur District by issuing temporary permits till the reaches are auctioned. The Director, Ground Water Department, Hyderabad, vide letter No.15573/HGII(2)/2004 dt. 8-10-2009 has informed that it is the discretion of the District Collector, who is empowered, to take decision for the above purpose in the capacity of Ex-officio Chairman of APWALTA, Guntur District duly observing the conditions laid down therein. The third respondent vide letter dt. 4-12-2009 has requested the fifth respondent to take necessary action for supply of sand on every Tuesday. Accordingly, the fifth respondent vide letter dt. 9-12- 2009 has requested all the Tahsidlars to take necessary action for supply of sand to utilize for construction of weaker section Housing under Government schemes. Due to floods to Krishna river in the month of October, 2009, the Government structures were damaged and the Executive Authorities were instructed to take all precautionary measures to complete the repairs to the structures on time bound basis. But the Executive Authorities have expressed their inability to complete the repairs within the stipulated period due to non-availability of sand for construction purpose and requested the third respondent to issue necessary instructions. Keeping in view the safety of the public, the third respondent, who is the Ex-officio Chairman of APWALTA, Guntur, vide proceedings dt. 18-12-2009 has issued instructions to all the Tahsildars in the District to allow sand transportation for Government Engineering Works only on every Tuesday under their personal supervision duly collecting required seigniorage fee along with prevailing income tax. This court by judgment dt. 20-8-2009 passed in WP No.17406/2006 directed the Director of Ground Water Department, Hyderabad to conduct survey in various reaches and to submit feasibility reports. The Director, Ground Water Department, Hyderabad has submitted non-feasibility of sand mining for the reaches falling in six reaches as stated by the petitioner hereinabove, and also stated that the situation will be reviewed during February, 2010 with reference to Amaravathi and Dharanikota sand reaches. Hence, the third respondent issued orders as per rule 23(1) of AP WALTA for lifting of sand to Indiramma Houses. As per rule 23(1) ( C ) of APWALT Rules,2004 in Vth order and above reaches ie., Godavari, Krishna, Pennar etc., sand mining may be permitted without affecting the existing sources for Irrigation, for drinking water, or industrial purposes. Further, the Director of Ground Water Department by letter dt. 8-12-2009 stated that it is the discretion of the third respondent, who is empowered, to take decision for the above purpose in the capacity of ex-officio Chairman of APWALTA, Guntur District duly observing conditions laid down under the said Act for local use. As per Rule 9-B (6) of Minor Mineral Concession Rules, the District Level Sand Committee is the competent authority to conduct public auction for right of quarrying of sand. Whereas the third respondent directed for lifting of sand for local use, which is exempted for payment of seigniorage fee as per rule 9-U of the Minor Mineral Concession Rules. The third respondent has to strike a delicate balance between conservancy and development. It is the responsibility of the administrative authorities to ensure that the administrative and welfare measures are not hindered and for the said specific reason, the third respondent passed the impugned orders, which do not suffer from any illegality. Sri A. Sanjeev Kumar, learned counsel for the petitioners contends that once the Deputy Director, Ground Water Department, recommended non-feasibility of sand mining, the impugned orders passed by the District Collector permitting lifting of sand is not in conformity with the order passed by this court in WP No.9753/2009, which is still in operation. This court categorically rejected the contention of the State that in view of Rule 23 of APWALT Rules, 2004, no prior clearance/report of the Ground Water Department is necessary stating that section 9-B (6) of the Minor Mineral Concession Rules enjoins the obtaining of clearance or a report from the River Conservator and the Director of Ground Water Department as condition precedent to the exercise by District Level Committee to identify a reach or mandal for grant of lease for sand mining and other matters connected therewith as specified. Per contra, learned Government Pleader for Industries would contend that Rule 9-B (1) contemplates public auction whereas rule 9(b)(6) permits lifting of sand without there being any auction. Under Rule 23 of APWALT Rules, 2004, the area where sand mining is affecting ground water regime shall be to be notified by prohibiting transportation of sand and banning mining and transporation of sand in notified over exploited groundwater micro basins/mandals. Rule 23(2) envisages the Ground Water Department to take up joint inspection along with officials of Mines and Geology Department whenever cases are referred to study the impact of sand mining, whereas the District Collector who is empowered to take decision for use of sand in the capacity of Ex-Officio Chairman, APWALTA, Guntur District exercised the discretion in the interest of public and therefore the same needs no interference. This Court in WP No.9753/2009 after elaborately considering the provisions of Minor Mineral Concession Rules held that “on a true and fair construction of the provisions of Rule 9-B (6) of the 1966 rules, the interpretation is compelling that a report or clearance from the Conservator of River and from the Director of Ground Water Department is a mandatory condition precedent to the exercise by the District Level Committee, commencing with identification of the reach or mandal to be leased out for conduct of auction; the assessment of availability of sand, the power and discretion to club or sub-divide the reaches where necessary and other house keeping or corollary functions requiring decision by the District Level Committee, as specified in this rule……... the object underlying the incorporation of a requirement of prior clearance from the Conservator of the concerned River and the Director, Ground Water Department is to ensure that the ground water levels are monitored and conserved. From the context and setting of Rule 9-B (6) of the 1966 rules, we infer that the State (as a delegate of the relevant functions of regulation in respect of minor minerals, under Section 15 of the Mines and Mineral (Regulation) Development Act 1957) has prioritised the ecological concerns of ground water and river conservation over the other concern of regulating the mining of sand with the corollary interest of income from this activity. In our considered view, before conducting the specified periodic auction, a report or clearance from the River Conservator and the Director of Ground Water Department (to the effect that the grant of lease for quarrying of sand would not have a pejorative impact on the conservation of the river or on the ground water levels) must be obtained. Transgression of this mandatory requirement cannot be sustained.” Repelling the contention of the learned Government Pleader that under the provisions of APWALTA and APWALT Rules, 2004, where sand mining is permitted in Godavari, Krishna and Penna Rivers (which are classified in Vth order and above rivers), no prior permission/report of the Government is necessary, this court in WP No.9753/2009 held as under: “The Principal Act under which the 2004 rules are issued is traceable to the legislative field enjoined to the State either in List –II or in List – III of the Constitution. The Mines and Minerals (Regulation and Development) Act 1957 is however a Union Legislation referable to the Legislative field enumerated in Entry 54 of List-I of the VIIth Schedule to the Constitution and enacts in Section 2 thereof a declaration that it is expedient in the public interest that the Union should take under its control the Regulation of Mines and Development of Minerals to the extent provided. In the context of the declaration of expediency enacted in Section 2 and given the amplitude of the federal occupation of the field, it is now settled by a catena of binding authority that the entire State legislative field qua Entry 23 of List-II is eclipsed by the dominant federal occupation qua the 1957 Act. The State thus has no legislative nor a complementary executive competence which is referable to Entry 23 of the State List available. Section 15 of the 1957 Act confers power on the State Governments to make Rules in respect of Minor Minerals and it is in exercise of such power delegated that the State has made the 1966 rules. The 1966 rules is therefore a special raft of rules. The provisions made by the State in exercise of the delegated rule making power under Section 15 of the 1957 Act is to regulate minor minerals. Rule 9-B(6) of the 1966 rules occurs in the context of such exercise of power by the State. This rule enjoins the obtaining of a report or clearance from the River Conservator and the Director of Ground Water Department as condition precedent to the exercise by the District Level Committee inter alia to identify a reache or mandal for the grant of lease for sand mining and other matters connected therewith as specified. In view of the above declaration made by this court, the contention of the learned Government Pleader that this court in the above writ petition was considered only grant of lease under Rule 9- B(6) of the Minor Mineral Concession Rules, but not specific power traceable to the District Collector under sub-rule (2) of Rule 23 of APWALT Rules, 2004 is devoid of merit. Rule 9-B (6) (ii) of Minor Mineral Concession Rules only authorizes the District Level Committee to decide the issue relating to demand, supply, prevailing concessions for transportation of sand by bullock carts, animals, sand consumed by weaker section housing schemes on the proposals received from the Assistant Director of Mines and Geology concerned, after duly obtaining necessary report/clearance from the Conservator of River and the Director, Ground Water Department, which does not altogether dispense with obtaining clearance from the Conservator of River and the Director, Ground Water Department as a whole. Whereas sub-rule (2) of Rule 23 of APWALT Rules, 2004 mandates the Ground Water Department to take up joint inspection along with officials of Mines and Geology Department of the concerned departments whenever cases are referred to study the impact of sand mining in an area and shall give its recommendations. If that be the case, the second respondent cannot abdicate its responsibility and leave it to the third respondent of his statutory obligation, which will have an impact on the ground water level for beneficial enjoyment of all the residents of the locality, which necessarily has to be preserved for beneficial enjoyment of the all concerned. In view of the same, the impugned proceedings issued by the third respondent dt.18-12-2009 and 4-12-2009 and consequential proceedings issued by the fifth respondent dt.9-12-2009 cannot be sustained and the same are accordingly quashed. The writ petition is accordingly allowed. No costs. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU,J DT. 28-7-2010 Kmr