THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN DATED THIS THE 10TH DAY OF AUGUST 2009. W.P.NO. 9753 OF 2009. Between: 1.Lakki Reddy Venkateshwar Reddy and another. ….Petitioners vs. 1.The Government of A.P., Industries & Commerce Dept., Hyderabad and 6 others. …….Respondents. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 9753 of 2009 ORAL ORDER: (Per GR,J) Two writ petitioners are aggrieved by the State action in conducting auction for mining of sand in Reach No.5 of Krishna River i.e. Kollipara sand reach, Guntur District. Pursuant to the auction, the 7th respondent was granted lease for the period 24.3.2008 to 31.3.2009 and thereafter from 1.4.2009 to 31.3.2010. At admission hearing on 1.5.2009, interim stay of quarrying operations in Reach No.5 for a limited period was granted which was extended thereafter upto 30.7.2009. The petitioners are residents of Vallabhapuram village adjoining sand reach No.5. They apprehend depletion of ground water as a consequence of the grant of lease in respect of Reach No.5 to the 7th respondent. The principal challenge to the auction and the grant of lease is on the ground that the requisite sanction/approval from the River Conservator and the Director of the Ground Water Department were not obtained. The petitioners contend that these are condition precedent in terms of Rule 9-B (6) of the A.P. Minor Mineral Concession Rules 1966 (for short ‘the 1966 rules’) as amended in G.O.Ms.No. 84 Industries and Commerce (M.I) Department dt. 10.4.2007. Prior to confirmation of the grant of lease in favour of the 7th respondent or even the execution of lease in favour of the 7th respondent, a report or clearance from the River Conservator and the Director of the Ground Water Department has not been obtained is admitted. An interpretive detour to this challenge is however asserted, which we deal with in the course of this Judgment. Earlier two W.P.Nos. 11158 of 2008 and 11315 of 2008 and one public interest litigation were filed in respect of Reach No. 5. W.P.No. 11158 of 2008 is by a Grampanchayat assailing an order of the Assistant Director of Mines and Geology dt. 23.2.2008 confirming the grant of lease and the action of executing lease deed in favour of the 7th respondent. Writ petition No. 11315 of 2008 was by villagers, residents of areas in and around Reach No.5, also challenging the order of the Assistant Director of Mines and Geology dt. 23.2.2008 and the auction notification dt. 24.1.2008. Certain interim orders were passed in these writ petitions, which are not germane to the present writ petition. Suffice it to notice that W.P.Nos. 11158 and 11315 of 2008 were dismissed by this Court by an order dt. 10.9.2008 on the ground that in a Memo dt. 20.8.2008 the hydrograph of Kollipara was brought on record, which assert that there was no depletion in the water levels during the years 2002 to 2008 and therefore quarrying of sand would not adversely affect the ground water level. This judgment neither expressly nor by any compelling implication discloses consideration of the impact of Rule 9 B (6) of the 1966 rules on which the petitioners peg their challenge to assert transgression of the Statutory rules by the official respondents in favour of the 7th respondent, in the matter of granting of the lease. The petitioners herein and others filed W.P.No. 27431 of 2008 challenging the order dt. 13.10.2008 of the Assistant Director of Mines and Geology granting permission to the 7th respondent to quarry sand in Reach No.5 from a ramp at K.M.22.400 of KRF bank portion, inter alia on the ground that the additional ramp was identified for transportation of the mined sand without obtaining permission from the Mandal Revenue Officer concerned and in transgression of the provisions of the 1966 rules. It is vigorously contended on behalf of the 7th respondent that institution of earlier writ petition No. 27431 of 2008 disentitles pursuit of this writ petition. This contention is rejected out of hand. W.P.No. 27431 of 2008 is not filed questioning the validity of the auction notification nor the grant of lease in favour of the 7th respondent on the ground that this conduct is in transgression of Rule 9 B (6) of the1966 rules. The singular ground of challenge therein is that no prior permission of the Mandal Revenue Officer concerned was obtained before identifying the additional ramp for transport of the sand mined in Reach No.5. The framework of the two writ petitions are different and therefore the mere participation of the 1st petitioner herein as one of the petitioners in W.P.No. 27431 of 2008 would not disentitle him to pursue this writ petition. Rule 9-B(6) of the 1966 rules reads as under: The District Level Committee shall be the Competent Authority to decide the following issues on the proposals received from the Assistant Director of Mines & Geology concerned, duly obtaining the necessary reports/clearance from the Conservator of River and the Director, Ground Water Department that: i) To identify the Reaches or Mandal to be leased out for conduct of auction. ii) To fix up minimum bid amount by taking following points into consideration, a) Availability of sand in terms of quantity, b) Demand, supply, prevailing concessions for transportation of sand by Bullock carts, animals, Sand consumed by weaker section housing schemes and c) Average knocked down bid amount for the last 3 years. iii) To club/sub divide the Reaches wherever necessary. iv) To fix the sale price at pit head before notification by considering the following points: a) Seigniorage fee, Sales Tax, income Tax and other taxes, if any applicable during the course of lease period. b) Location, demand and supply. c) Marginal profit to be collected by the knocked down bidder/tenderer. d) Loading and formation or laying of ramps or roads in the Reach or Mandal. 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. In our considered view, 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. The learned Government Pleader for Industries and Commerce would present an attractive and creative defence for the impugned action. Reliance is on a distinct legislative and statutory regime. Rule 23(1) (c) of the A.P. Water, Land and Trees Rules 2004 (issued in exercise of powers conferred by Section 45(1) of the A.P. Water, Land and Trees Act 2004) (for short ‘ the 2004 rules’), sand mining is permitted in Godavari, Krishna and Pennar Rivers (which are classified as Vth order and above rivers) without affecting the existing sources for irrigation, drinking water or industrial purposes. Rule 23 of the 2004 rules facially deals with sand mining. It is to the effect that in areas where sand mining affects the ground water, such areas shall be notified and transportation of sand shall be prohibited and mining and transportation of sand shall be banned in the notified overexploited ground water micro basins/mandals and for other areas the following conditions shall apply for exploitation of sand. Sub- rule (1) of Rule 23 enjoins that sand mining shall not be permitted in notified areas except for local use; clause (b) of Sub-rule (1) of Rule 23 dealing with IVth order streams enjoins that sand mining shall be restricted to specified areas and clause (c) refers to major rivers like Godavari, Krishna and Pennar (classified as V order rivers) permits sand mining though without affecting the existing sources for irrigation, drinking water and industrial purposes. The contention of the State is that in view of Rule 23 of the 2004 rules, no prior clearance/report of the Groundwater Department is necessary. 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 the context of the different Constitutional domains in which the 1966 rules on the one hand and the 2004 rules on other operate, we are not persuaded to accept the submission of the learned Government Pleader for Industries that the apparent immunity to unrestricted sand mining in Vth order and above rivers like Godavari, Krihsna and Pennar would overwhelm or eclipse the mandatory trajectory of Rule 9-B (6) of the 1966 rules which enjoins the obtaining of a report or clearance from the River Conservator and the Director of Ground Water Department prior to the exercise by the District Level Committee to identify reaches and for conduct of auction for sand mining. Sri Rudra Prasad, the learned Counsel for the 7th respondent would contend, a contention echoed by the learned Government Pleader for Irrigation (who appears for the 6th respondent), that the Executive Engineer, Krishna Central Division, Vijayawada (who is the notified River Conservator for Krishna River in A.P.) has by a letter dt. 4.5.2009 addressed to the Joint Collector, Guntur signified his “no objection” to clear sand reaches from the river conservation point of view. The letter of the Executive Engineer, Krishna Central Division, which is referred to by the learned Government Pleader for Irrigation as well makes for interesting reading. To the extent relevant and material for the purposes of this writ petition, the letter dt. 4.5.2009 reads as under: Necessary clearance has to be obtained from the conservator of river before conducting auction in terms of G.O.Ms.No. 84 dt. 10.4.2007 and the same has not been followed by the Assistant Director of Mines & Geology, Guntur. Now the Joint Collector, Guntur in letter no. cited has requested to give clearance to the reaches mentioned in the statement enclosed to the letter as the said reaches have been auctioned and the leases are in force. In view of the above, it is submitted that there is no objection to give clearance to the sand reaches in R.C. point of view and also in the interest of revenue of Guntur and accordingly the clearance is hereby accorded for the reaches 5,6,7,12 and 14 as mentioned in the statement subject to the following conditions. The 1st paragraph (extracted supra) admits the position that clearance from the River Conservator which is a condition precedent for conduct of auction for sand mining has not been obtained by the Assistant Director of Mines and Minerals, Guntur; the 2nd paragraph records the request of the Joint Collector, Guntur for clearance to the reaches which have already been auctioned and in respect of which leases were executed; the 3rd paragraph is a clear indicator to the abdication of statutory responsibility by the River Conservator. Why he has no objection to the grant of clearance “from the River Conservation point of view”; whether such grant of clearance is preceded by any scientific or professional study of the impact of sand mining on ground water levels or whether sand mining would adversely impact the aquifers, the letter of the Conservator of River Krishna conveniently omits to explain. It would appear from the letter dt. 4.5.2009 that the River Conservator was pre- eminently concerned and persuaded by the interests of revenue and had accorded clearance for reaches including No.5 of Krishna River in Gutur District subject, of course, to 26 enumerated conditions. In our considered view the interests of the revenue is not the concern or the charter of the River Conservator while delivering upon his functions under the River Conservancy Act 1884. The conservation of the river in the function consecrated to the care of the River Conservator under the provisions of the River Conservancy Act. In any view of the matter, by the letter dt. 4.5.2009, the Conservator of Krishna River does not appear to have delivered upon his statutory obligations and has given clearance without relevant application of mind and for reasons extraneous to his statutory functions. In any event, the clearance/report of the Director, Ground Water Department has not been obtained even till date. This is admitted. It was conjointly urged by the learned Government Pleaders for the official respondents and the learned Counsel for the 7th respondent that since the River Conservator has on 4.5.2009 granted clearance to sand mining inter alia in Reach No. 5, this should be considered as a ratification of the conduct of the State. This contention does not commend acceptance by this Court. Since Section 9-B (6) of the 1966 Rules enjoins the obtaining of clearance or a report from the River Conservator and the Director of the Ground Water Department prior to identification of a Reach or Mandal and the consequent grant of lease, we are not inclined either to legitimise the transgression on the basis of the subsequent clearance by the Krishna River Conservator nor are we persuaded, by any contention on behalf of the official respondents or by the learned Counsel for the 7th respondent, that sand mining in Reach No.5 is of such a fundamental importance to the State as would warrant transgression of Rule 9-B (6) of the 1966 rules; nor that it is otherwise in overwhelming public interest that the gross transgression of a mandatory provision should be glossed over by a contrived and strained interpretation that a condition precedent requirement is met and addressed by ratification. For the aforesaid reasons, the writ petition is allowed. The holding of the auction notified on 24.1.2008 by the 5th respondent and grant of lease in favour of the 7th respondent cannot be sustained, invites invalidation and is accordingly quashed. However, in the circumstances there shall be no order as to costs. ___________________ GODA RAGHURAM,J 10.8.09 _________________________ RAMESH RANGANATHAN,J Krb. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 9753 of 2009. Dated: 10th August, 2009.