THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.23539 of 2007 Date : 4-2-2008 Between : Raja Khanderao s/o. Ranga Rao Deshmukh Palsikar and another .. Petitioner and The District Collector, Nizamabad and 2 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.23539 of 2007 ORDER: 1. Heard the Counsel on record. 2. This Court issued rule nisi on 13-11-2007. 3. On 29-11-2007, this Court granted interim direction until further orders. 4. W.V.M.P.No.3294/2007, W.V.M.P.No.3446/2007 and W.V.M.P.No.41/2008 are filed to vacate the aforesaid interim direction. 5. Respondents 4 to 30 were impleaded by this Court by virtue of an order made in W.P.M.P.No.36207/2007 dated 27-12-2007. 6. With the consent of the Counsel on record, the Writ Petition itself is being disposed of. 7. The Writ Petition is filed or a Writ of Mandamus declaring the action of the respondents in interfering with the transportation of sand from their land GAT No.417, admeasuring Ac.2-01 i.e., 21000 sq. mts. situate at Gunjgoan Tq. Biloli, Nanded District, Maharashtra State as being illegal, arbitrary and unconstitutional. 8. The G.P.A. holder of the petitioner had sworn to the affidavit filed in support of the Writ Petition. It is stated that the 1st respondent owns land GAT No.417, admeasuring Ac.2.01 i.e., 20100 sq. mts. situate at Gunjgaon, Tqlue Biloli, Nanded District, Maharashtra State. The 1st petitioner applied for permission before the District Collector, Nanded for excavating sand stored in the said private land. The permission was granted by the District Collector, Nanded dated 6-9-2007 initially for the period May 2007 to 31-7-2007 and subsequently extended for another three months w.e.f. 7-9-2007 to 6- 12-2007. As per the rules in vogue in the State of Maharashtra, the 1st petitioner is entitled for periodical extension of permission to excavate sand subject to due performance of terms and conditions of the grant. The 2nd petitioner entered into lease agreement dated 31-8- 2007 with the 1st petitioner for excavating, transporting and selling of sand lifted from the land of the 1st petitioner. The 1st petitioner is registered with VAT registration (TIN)28138361396 as required under A.P. Mineral Dealer’s Rules 2000 and since then the 1st petitioner had been regularly filing returns with the Commercial Tax Department, Bodhan Circle, Nizamabad Division. It is further stated that the 2nd respondent unauthorisedly started interfering with the transportation of sand removed from the land of the 1st petitioner frequently by intercepting lorries transporting sand from the quarry site of the 1st petitioner. In such circumstances, the petitioners were compelled to submit a representation dated 20-6-2007 to the 1st respondent seeking his indulgence and clarification. The 1st respondent forwarded the same to the 3rd respondent for his comments. The 3rd respondent inspected the quarry site and observed that the sand bearing patta land is owned by the 1st petitioner situate at Gunjgaon village, Nanded District, Maharashtra State and gave his clarification that Mines and Geology Department has no right to stop such transportation with a caution to the 1st petitioner that he should erect boundaries bordering A.P. State and that he should not enter and lift the sand in A.P. State and further observed that the 1st petitioner should take A.P. Mineral Dealer Registration. In pursuance of the same, the petitioners had erected boundaries at their site clearly earmarking A.P. and Maharashtra State boundaries. It is relevant to state that the land of the 1st petitioner is bordering A.P. State. There is a pathway from the quarry site at Gunjgaon village which leads to Siddapur village in A.P. State. On 24-10- 2007, the 2nd respondent seized 7 tippers/lorries bearing registration Nos.AP 25 T 4599, AP 25 U 1899, ATJ 3333, AP 03 5313, AP 25 T 4771, AP 23 V 2530 and AP 23 V 5917 all of which were transporting sand from the quarry site of the 1st petitioner on the allegation that these vehicles had been transporting sand from Siddapur outskirts at Manjeera river. Upon such seizure, the 2nd respondent handed over the vehicles to the 3rd respondent. The lorry/tipper owners were compelled to submit proforma applications for release of vehicles and by imposing penalty of Rs.10,000/- the lorries were released on 29-10-2007. The vehicle owners having no other go, had to pay fine amounts of Rs.10,000/- each and got their vehicles along with loads of sand released under proceedings dated 29-10-2007. The action of the respondents-authorities in seizing the lorries transporting sand from the quarry site of the 1st petitioner and thereby interfering with the legal business of the petitioners is illegal, arbitrary and unconstitutional. The respondents are interfering in the transportation of sand by the petitioners for extraneous considerations. The petitioners had been operating business by duly obtaining brass (way bills) issued by the State of Maharashtra and the petitioners were sanctioned total 9000 brass, which are issued on the basis of approximate quantity of sand stored in the quarry site. It is further stated that initially 1000 brass had been issued to the petitioners on payment of Rs.100/- per brass. So far, the petitioners had used about 407 brass. Each lorry load of sand is transported under one brass. The topography of the quarry site is such that the petitioners have to necessarily enter the State of A.P. through Siddapur village after loading sand at the quarry site. It would not be possible for the petitioners to play any mischief by removing sand from A.P. State border, as it requires a circle and attached ramp or sanctioning the vehicles and for loading the sand into the vehicles. Without such facility, sand cannot be loaded from A.P. border. Moreover, when large amount of sand is stored in the 1st petitioner and duly obtained permissions are given to him, there is no necessity whatsoever to illegally quarry sand from the A.P. State. Though the owners of the lorry are independently seeking to avail remedy under A.P. Mineral Dealer’s Rules 2000, challenging the seizure and imposition of fine, the petitioners are aggrieved by the action of the respondents in interfering with their legal activity as ultimately the transporters and purchasers of sand from the petitioners’ site compel the petitioners to pay the fine. The interference of the respondents is illegal, unwarranted and the same is in violation of fundamental rights guaranteed to them under Articles 14, 19(1)(g), 300-A and 301 of the Constitution of India. In such circumstances, the writ petitioners approached this Court praying for the reliefs specified above. 9. W.V.M.P.No.3294/2007 is filed by respondents 1 and 2 and in the affidavit filed in support of the vacate application, sworn to by the 2nd respondent – Tahsildar, Bodhan, it is stated that under the guise of having a licence from Government of Maharashtra i.e., Collector, Nanded, the writ petitioners are encroaching into the A.P. State border falling in Nizamabad District of Bodhan Mandal and are illegally transporting sand from the land covered under Bodhan from the river Manjeera. The petitioners high-handedly also laid a road through the river falling under Bodhan, Nizamabad District. The high- handed activity of the petitioners is stopped and the petitioners without having any right cannot be allowed to carry on sand from the territory falling in Andhra Pradesh. It is further stated that the petitioners were lifting the sand illegally from Manjeera river falling within the jurisdiction of A.P. State and as such the lorries/tippers were seized and were handed over to Police Bodhan as per the instructions of the District Collector, Nizamabad. It is also further stated that the petitioners cannot be permitted to carry on the business of lifting the sand from A.P. State borders without any licence from the State of Andhra Pradesh. 10. In W.V.M.P.No.3446/2007, the vacate application filed by the Assistant Director of Mines and Geology-3rd respondent, it is averred that the 3rd respondent received a copy marked letter No.C/10640/2004 dated 25-10-2007 from Sri V.Devender Reddy, Tahsildar, Bodhan addressed to the District Collector, Nizamabad stating that he received a complaint on phone that some of the tipper owners/drivers lifting the sand from the disputed place of Siddapoor village of Bodhan Mandal and also informed that he rushed to the spot and stopped the transportation of sand from the disputed site and brought the vehicles (1) AP 25T 4599, 92) AP 23 V 5917, 93) AP 23 V 2530, (4) AP 25 U 1899, (5) AP 25 T 4771, (6) AP 03 5313 and (7) ATJ 3333 to his office and handed over them the Police Station. It is further stated that the owners/drivers of the aforesaid vehicles submitted applications to the 3rd respondent along with challan for Rs.10,000/- each remitted in S.B.H. Nizamabad and requested to release their vehicles as they are caught by the Mandal Revenue Officer, Bodhan while transporting the sand illegally. Further it is stated that the 1st petitioner had taken A.P. Mineral Dealer registration on 23-7-2007. The Form of registration was issued by the Deputy Director of Mines & Geology, Nizamabad vide registration No.1465/MDR/NZB/SAND/2007 dated 23-7-2007 and since then the petitioner had not stocked sand in his stock point i.e., Sy.Nos.562, 575 and 596 of Kaldurti village, Bodhan Mandal, Nizamabad District and he has not been issued transit pass from the undersigned to transport the same and hence the aforesaid vehicles transporting the sand does not come under A.P. Mineral Dealers Rules 2000. It is further stated that the action taken by the 3rd respondent for collecting the penalty amount of Rs.10,000/- each from the owners/drivers of the vehicles is absolutely correct as the vehicles were caught by the Tahsildar, Bodhan while transporting sand from the disputed site illegally and hence there is no truth in the contention that the 3rd respondent is interfering with the sand transportation illegally or without authority. Further it is stated that the petitioner had not filed ant document to show that proper seigniorage fee had been paid on the mineral. There is no weighment bills submitted nor the required details under the transit permit had been furnished and therefore it is clear that the petitioner had been illegally transporting the sand. Further, the petitioner had also not produced any permit to make such inter-state transport. The order of permit granted by the Collector, Nanded does not give any permission or right to the petitioner to sell the sand across the border and in the absence of the aforesaid permits, the transporting of sand by the petitioner to the State of A.P. cannot be termed as legal. 11. W.V.M.P.No.41/2008 is filed by the implead- applicants-agriculturists. In the counter affidavit filed by these parties, it is stated that they are residents and agriculturists of Siddapur K, Kaldurthi, Rampur and Jadi Jamalpur villages of Bodhan Mandal and they are affected by the illegal mining being carried on by the writ petitioners in Bodhan area and the Manjeera river adjoining their villages as the ground water levels in the said area are adversely affected. It is stated that even as per the averments made in the affidavit filed in support of the Writ Petition, the permission granted in favour of the petitioners for excavating the sand in their patta land had expired by 6-12-2007 and as such the Writ Petition as well as the Miscellaneous Petition became infructuous. The writ petitioners cannot carry on the mining and transportation of sand extended within Andhra Pradesh area without any valid lease, licence and permit from the authorities in Andhra Pradesh. It is further stated that under the guise of excavating the sand from the land of the 1st petitioner, the petitioners are lifting and mining the sand by encroaching the sand mines in Andhra Pradesh State border including the Manjeera river and are illegally transporting the sand and they had also laid a road through Manjeera river falling in Bodhan Mandal area illegally and unauthorisedly and transporting the sand within the territory of Andhra Pradesh without any lease, permission or license whatsoever which is illegal and unauthorised. It is further stated that in view of the orders passed in the Writ Petition, the official respondents are unable to stop the illegal mining and transportation by the writ petitioners. It is also further stated that causing extensive and large scale mining of sand in the lands of these implead-applicants and the Manjeera river, the writ petitioners are causing enormous loss to the ground water levels and consequently the bore-wells of these implead- applicants and other villages are being dried up and the ground water levels are coming down which is illegal, unauthorised and contrary to the ban imposed by the 1st respondent on the mining of sand in Nizamabad District by proceedings No.221/2001-Ex.B.7(Pts.) dated 6-10- 2002 which is still in force. It is further stated that the illegal sand mining carried on by the petitioners is not only causing depletion of the ground water level including shortage of drinking water, but also badly damaging the village roads by overloading the lorries apart from causing noise and air pollution inasmuch as the writ petitioners are plying about 300 trips of sand lorries per day. The writ petitioners are grossly misusing the permission obtained from the Maharashtra authorities under the guise of which they are exploiting the sand in Bodhan area of Andhra Pradesh State without any licence or authority in a high- handed manner which cannot be countenanced by this Court and unless this Court vacates the order dated 29- 11-2007, the implead-applicants will suffer undue hardship and irreparable loss. 12. In the light of the clear and specific stand taken by the 3rd respondent – Assistant Director of Mines and Geology and also the respondents 1 and 2 i.e., District Collector, Nizamabad and the Tahsildar, Bodhan Mandal, Nizamabad District, in the counter affidavit, it is clear that without any valid permit whatsoever, the writ petitioners are carrying on mining operations within the territory of the State of Andhra Pradesh. It is needless to say that the same is impermissible. No doubt, the implead-applicants in their counter affidavit filed in support of W.V.M.P.No.41/2008 had made further averments relating to how they are affected parties and how their rights also would be prejudiced. This question need not be dealt with in elaboration for the reason that in the light of the specific stand taken by the respondents 1 and 2 in their counter affidavit as well as by the 3rd respondent in his counter affidavit, inasmuch as the writ petitioners have no right at all to carry on such operations within the territory of the State of Andhra Pradesh without valid permits, the Writ Petition being devoid of merit, the same is liable to be dismissed. 13. Accordingly, the Writ Petition is hereby dismissed. It is needless to say that the interim order made by this Court automatically stands vacated inasmuch as which Writ Petition itself is being dismissed. No costs. _________________ Justice P.S.Narayana Date : 4-2-2008 AM