Bheemagiri Bhaskar v. S Revenue Divisional Officer, Bhongir

S.B. SINHA, J.

( 1 ) THE power of the District Collector to ban quarrying of sand and transportation thereof has come up for consideration in these Writ Petitions. Although all these writ petitions relate to the controversy as to the quarrying of sand from various river beds, streams flowing in various Gram Panchayat areas situated in Nalgonda, Medak, Mahaboobnagar and Warangal Districts, they can, however, be classified as three categories.

( 2 ) THE first category of writ petitions viz. , W. P. Nos. 25644 of 2000, 4255, 4398, 4407, 3617, 3277, 3303, 3581 and 3526 of 2001 are filed by the alleged lease-holders, who were said to have been granted permits/leases by the Gram Panchayats for quarrying the sand, for a declaration that the action of the respondents in interfering with the quarrying and transportation of sand by them as is arbitrary and illegal and for a direction upon the respondents not to interfere with the their right to quarry and transport the sand.

( 3 ) THE second category of writ petitions, viz. , W. P. 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 in 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. , W. P. 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 remove the sand is arbitrary and illegal.

( 6 ) THE factual matrix category-wise may be stated thus :in W. P. Nos. 25644 of 2000 and W. P. Nos. 4255, 4398, 4407, 3617, 3277, 3303, 3581 and 3526 of 2001, the petitioners were the highest bidders for quarrying of sand in the auctions held on various dates in the respective Gram Panchayat areas in Nalgonda, Medak and Warangal districts. They were granted leases for various periods subject to the condition that they should lay pucca approach roads from the respective Gram Panchayats to the quarries near the river beds from where they were permitted to quarry and transport the sand. The leases granted in favour of the petitioners are from 24-11-2000 to 24-11-2002, 29-7-99 to 28-7-2001, 14-10-1999 to 14-10-2001, 14-10-1999 to 14-10-2001, 4-1-2000 to 4-7-2001, 1-2-2001 to 31-8-2001, 24-4-2000 to 19-10-2001, 20-12-1999 to 19-6-2001 and 15-11-1999 to 14-11-2001 respectively. They also paid compensation to the pattadars from whose lands the approach roads were laid. Their common grievance is that their vehicles carrying the sand were intercepted by the revenue authorities without assigning any reasons and notice even though their period of lease still exists.

( 7 ) IN W. P. No. 5405, the petitioner who is an agricultural was having an extent of Ac. 16. 00 of dry land near Kanchanpally, Nalgonda district and his only source of livelihood is agriculture. He contends that by reason of quarrying of sand in the nearby Bikkeru vagu, his bore-wells are drying up. It has been contended that the Collector had issued a Memo dated 21-4-1999 pursuant to whereof some areas in certain mandals have been classified as dark categories as thereby the ground water level has gone down to such an extent that no water is available for drinking or irrigational purposes. In spite of the ban orders issued by the Collector, no action is being taken to stop the quarrying.

( 8 ) IN W. P. No. 4640 of 2001, the Petitioner was having an extent of Ac. 15. 00 of land. On account of the illegal quarrying of sand, there was depletion ground water table. There was indiscriminate removal of sand from Bikkeru vagu. The local Govt. machinery is hand-in-glove with the contractors and way bills are being issued indiscriminately. The respondents are not taking action and on account of the inaction on their part, the livelihood of the petitioner is being affected and his rights under Articles 14 and 21 are violated.

( 9 ) IN W. P. 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 M. R. O. 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 W. P. Nos. 4628 of 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 sand 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 W. P. 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, Mahaboobnagar District, on account of Dindi Vagu. After demarcation of the lands by the Mandal Surveyor, he was granted permission to transport the sand from his lands up to 31-3-2000 and the necessary seignorage charges were collected. The action of the respondents in fixing a time limit for removing the sand is arbitrary and discriminatory and therefore sought for a direction to extend the permission to lift the sand.

( 12 ) AT the first instance, we will take up the first category of Writ Petitions filed by the leaseholders who filed the petitions challenging the action of the respondents in interfering with the quarrying and transportation of sand. By reason of the proceedings No. 255 dated 5-5-1999 the Collector observed :it has come to the notice of the District Collector that the lifting of sand is adversely and drastically affecting the profile of Ground Water in Nalgonda district. This act has also been confirmed by the Deputy Director (GWD) Dept., Nalgonda. Further, there have been large scale representations from public regarding the adverse impact on ground water levels. The entire effort for soil and moisture conservation in the district through watershed and vana samrakshana programme where a lot of money is being invested, is getting nullified due to indiscriminate lifting of sand. In the reference read above and according to rules and guidelines issued with regard to the auction of sand in the water sources etc. by the gram panchayats, the following precautions have to be taken. 1. Damage should not be caused to the water courses or their bunds. 2 Lifting of sand should not affect the ecological conditions of the ground water level scope and shall not cause environmental damage and damage to any nearby structures. In sand bearing ones where the ground water table is likely to be adversely affected and nearby structures are likely to damage the Collector may denotify such areas from contract of sale by auction. In view of te circumstances explained above and in exercise of the powers conferred in the above said Government orders and guidelines issued by the Commissioner, Panchayat Raj and Rural Development, Hyderabad there shall be a ban on lifting of sand in the entire Nalgonda district except in Gram Panchayats listed in Annexure and where issue is under examination.

( 13 ) YET again referring to orders dated 23-11-1998, in proceedings 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 Dist. 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 letter dated 8-8-2000 which was addressed to all the Revenue Officers in the district, Panchayat Officers, Motor Vehicle Inspectors etc. stated that :i am to state that the copy of the reference cited is appended herewith for following the guidelines given therein and for taking necessary action in the matter. I am to further state that there is a total ban on all sand quarrying in this district due to which all auctions of sand have been suspended in view of the seriously deteriorated condition of river and stream beds and the severe damage to Ground Water recuperation being caused by it as per the report of the Dy. Director (G. W.), Nalgonda. In view of the above, I request you to follow the said guidelines strictly and take necessary action in the matter and report from time to time.

( 15 ) THE matter relating to auction of sand through Gram Panchayats, however, have undergone several police decisions by the State. Several executive instructions have been issue from time to time.

( 16 ) FROM the aforementioned proceedings it would appear that proceedings dated 5-5-1999 were issued keeping in view the fact that lifting of sand in areas of Nalgonda district had adversely and drastically affected ground water level which fact has been confirmed by the Deputy Director, Ground Waters Department, Nalgonda. Ban was imposed for the first time on 14-4-1992. Despite the same, the State of Andhra Pradesh issued various instructions and framed Rules under the Andhra Pradesh Pachayat Raj Act and also under the Minor Mineral Concession Rules.

( 17 ) IN the year 1997, auction used to be conducted through the Mining Department. On or about 17-7-1998, on the representation of the Gram Panchayats, G. O. Ms. No. 248, Industries and Commerce was issued whereby and whereunder the Panchayats were allowed to keep the amount of revenue collected on account of auction of sales held for grant of permits for quarrying and lifting of sand with them. Yet again on 14-9-1998, G. O. Ms. No. 328 was issued in supersession of G. O. Ms. No. 248 stating :based on representation received from people representatives and members of public, Government has revised the present policy of granting and leases and a new sand policy was introduced in G. O. Ms. No. 248, Ind and Com. Dt. 17-7-1998. Subsequent to issue of the G. O. 8th read above, Govt. have further reviewed the matter and after careful examination of the above, it is found necessary and expedient to modify the new sand policy and accordingly in supersession of the G. O. 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 D. M. 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 seigneorage 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. (viii) Sand wherever quarries in the main rivers by collecting from water and carried through boats, Boatsmen cooperative societies shall be preferred for such reaches by allowing 10% concession on the highest tendered /knocked down amount in four quarterly instalments provided local society will have preference wherever more than one society stakes claim for right of sand quarrying. The Director of Mines and Geology is requested to take necessary action accordingly and send necessary draft amendments to A. P. M. M. C, Rules, 1966, in consequence with the above orders of the Government immediately. He may also devise suitable mechanism to see that seigniorage fee is not collected from weaker section housing programmes and other Government schemes.

( 18 ) RULES, however, were not amended and despite the fact that only 13 mandals were excluded, auction for grant of quarrying permits for lifting and transporting of minor mineral sand had been held either by the Sarpanches or by the Gram Panchayats and auctions had been held indiscriminately. In several cases, despite the fact that power to hold auction rightly or wrongly had been conferred only on the District Level Committee, permits/leases, however, had been granted by Sarpanches. In some cases, even money collected by the Sarpanches from the auction purchasers had not been deposited into the treasury. By reason G. O. Ms. No. 356 dated 22-11-1999, guidelines have been issued regarding the grant of sand leases by sealed tender-cum-public auction system. But, even the said guidelines did not speak of implementation of the orders of grant of permits. It merely provides as to which authority should conduct auction as also the constitution of the District Level Committee. Subsequently, the State in exercise of its power conferred upon it under Clauses (xi), (xii) and (xxii) of S. 268 of A. P. Panchayat Raj Act, 1994, made rules, in terms whereof, a District Level Committee was constituted authorizing it to hold auction of sand, in G. O. Ms. No. 71 dated 29-2-2000. However, the said G. O. Ms. was held to be ultra vires by a learned single Judge of this Court. The State thereafter issued G. O. Ms. No. 1 dated 1-1-2001 amending the A. P. Minor Mineral Concession Rules, 1966. Rule 4 of the said rules reads thus :sand means ordinary sand used in construction activities under the Andhra Pradesh Minor Mineral Concession Rules, 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 withal 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, in particular, we may refer to W. P. No. 3303 of 2001 wherein in the counter-affidavit it is stated that no auction was conducted by the Gram Panchayat at all. A plea had been taken in the counter affidavit that no lease permits had been granted and the documents produced by the petitioners are forged and fabricated ones. The petitioners had filed counter complaint against the Sarpanches for issuing the documents which are not genuine.

( 21 ) SIMILARLY, in W. P. No. 3581 of 2001, the Commissioner of Medak Nagar Panchayat has filed an application seeking to implead him as party to the writ petition and also an application to vacate the stay order stating that neither any notification for holding any auction has been issued by the Gram Panchayat nor in fact any auction had been held by it. It has been pointed out by the Medak Municipality that the scheme of the Government as regards the supply of drinking water from rivers is being frustrated by reason of arbitrary, unscientific and random grant of quarry permits by the Sarpanches of Gram panchayats.

( 22 ) IN the light of what is stated above, it emerges that, a sorry state of affair is prevailing in the State in relation to the aforementioned matter and the situation is appalling. Despite the fact that a ban order was imposed in 1992, in most of the writ petitions, neither counter-affidavits have been filed nor any material has been placed before the Court to show that such ban order exists. No steps had been taken by the Gram Panchayat authorities to impose the ban nor any counter-affidavits have been filed by the Collectors to show that the ban orders imposed by them are implemented. Even the ban orders, it is stated, had not been given due publicity nor they were published in the Gazette. Despite the fact that quarry permits had been granted in contravention of the ban orders, no steps have been taken for cancellation of the said permits.

( 23 ) MR. A. V. Sivaiah, the learned Government Pleader for Panchayat Raj appearing on behalf of the State would contend that in absence of the proper parties having been impleaded, the State could not produce the ban orders. He also submitted that the ban orders could not be implemented because of the interim orders passed by this Court in some of the cases.

( 24 ) IN the aforementioned situation, Sudershan Reddy,. by an order dated 29-3-2001 referred the cases for being listed 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 meters below the level of 1998-1999. 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 petitioners, however, submitted that Sarpanches and Gram Panchayats having been authorized by certain orders issued by the Government had been holding auctions and granting quarry permits. No ban had been imposed on quarrying and only when the police authorities and revenue authorities stopped vehicles, the writ petitions had been filed. However, the learned Government Pleader for Home submitted that the police authorities had not intercepted the vehicles transporting the sand and in fact any such interceptions were made only for checking the violation of the conditions of permits granted in terms of the Motor Vehicles Act.

( 27 ) HAVING regard to the provisions of Article 21 of the Constitution of India, there cannot be any doubt that right to get drinking water comes within the purview of Article 21 and it is a fundamental right.

( 28 ) ECOLOGY must be maintained at all costs. Grant of quarry permits for lifting of sand which is a minor mineral may be granted in terms of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 (for short the) and A. P. Minor Mineral Concession Rules, 1966. But, no such permits can be granted if the same attracts the wrath of Article 21 of the Constitution of India. Even the scheme framed under the provisions of the said Act in relation to ecology and environment has a predominant role to play. Section 17-A of the said Act which deals with reservation of area for purposes of conservation reads thus:17-A. Reservation of area for purposes of conservation :- (1) The Central Government, with a view to conserving any mineral and after consultation with the State Government may reserve any area not already held under any prospecting licence of mining lease 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 area will be reserved. 1-A : The Central Government may, in consultation with the State 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 area will be 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-sec. (1a) or sub-sec. (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 :48a : Protection and improvement of environment and safeguarding of forests and wild life : The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. In T. Damodhar Rao v. Special Officer, Municipal Corporation, air 1987 Andh Pra. 171, relying on rascoc Pound and Stockholm Declaration as well as Article 48-A of the Constitution, Justice P. A. Choudary, held :from the above it is clear that protection of the environment is not only the duty of the citizen but it is also the obligation of the State and all other State organs including the Courts. In that extent, environmental law has succeeded in unshackling mans right to life and personal liberty from the clutches of common law theory of individual ownership. Examining the matter from the above Constitutional point of view, it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Art. 21 of the Constitution embraces the protection and preservation of natures gift without which life cannot be enjoyed. There can be no reason why practice of violent extinguishments of life alone should be regarded as violative of Art. 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting violation of Art. 21 of the Constitution.

( 30 ) IN a case of this nature, precautionary principle should be applied. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmental harmful activity. Environmental protection not only aim protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by suspicion of concrete danger but also by (justified) concern or risk potential. The Precautionary principle was recommended by ENEP Governing Council. The "precautionary Principles" in the context of the municipal law means, (i) Environmental measures - by the State Government and Statutory authorities - must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) "onus of proof" is on the actor or the developer/industrialist to 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 1997 SC 811 [LQ/SC/1996/2163] ). 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 effect 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 virtue of their profession placed at high pedestal cannot be deprived of their legitimate right to have a share in it for the use of irrigation. The quarrying and lifting of sand in the river bed areas are thus required to be protected and regulated by a scheme to be evolved by the State. The State being a welfare State was under constitutional obligation to control such illegal quarrying and lifting of sand in Gram panchayat areas. If no preventive measures are taken to stop such activity, it may lead to a situation where there will be no land in which cultivation can be carried out in the villages where the people mainly depend on ground water for their irrigation purposes. Therefore, it is high time that the State Government takes appropriate preventive measures immediately to arrest the illegal operations that are being carried out in the State.

( 33 ) MRS. Sobha, the learned counsel appearing for the petitioners fairly concedes that ban orders should be strictly implemented. She, however, submits that certain villages have been excluded without any rational basis. The District Collectors are directed to consider the matter with regard to the exemption of ban orders on a rational basis and for the said purpose, they undoubtedly, would take into consideration the expert reports of the Ground Water Department.

( 34 ) ANOTHER question which incidentally arises for consideration in these writ petitions is, whether the sand accumulated on the lands of the pattadars in terms of the provisions of the A. P. Minor Mineral Concession Rules, would automatically entitle them ownership, as also right to dispose of them.

( 35 ) SOME of the petitioners herein are pattadars. By reason of flood or otherwise, sand, which is a minor mineral within the meaning of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the A. P. Minor Mineral Concession Rules, 1966 (hereinafter referred to as the Rules for the sake of brevity) accumulated on their land. According to them, they being agriculturists must clear the sand from land so as to enable them to carry on their agricultural activities for which they hold the land. For the said purpose, they had been approaching the authorities and permits also used to be granted. They are also ready and willing to pay the royalty etc. in relation thereto. In some of the cases such permission 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 W. P. 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 S. 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 date and save as otherwise expressly provided in this Act - (a) xxxxxxxxxxxxxxxx (b) the entire estate (including minor inams (post-settlement or pre-settlement) included in the assets of the zamindari estate at the permanent settlement of that estate; all communal lands and porambokes; other non-ryoti lands; waste lands; pasture lands; forest mines and minerals; quarries; rivers and streams; tanks and irrigation works, fisheries, and ferries, shall stand transferred to the Government and vest in them, free of all encumbrances; and the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate. "

( 39 ) BY reason of the aforementioned provisions therefor, all the rights mentioned therein, including the right in mines and minerals vest in the State. In this context, reference may be made to State of A. P. v. Balaram Reddy, AIR 1963 SC 264 [LQ/SC/1962/143] , in which was held :this later decision, therefore, in our opinion cannot be read in such a way as to lay down that wherever Pooramboke is included in the inam grant, a presumption must be drawn that the inam grant included sub-soil rights also; all that may be possible to infer by the inclusion of Poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as was contended in that case. The fact therefore that in the inam fair register in this case the grant includes Poramboke would not by itself establish that sub-soil rights were also included in the grant. So far as sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein. We have already remarked that the original grant in this case is not available and we have only the inam fair register to go by. There can be no doubt therefore on the facts of this case that the learned single Judge was right in holding that the grant of sub-soil rights to shrotriemdars is not established. In terms of Entry 54 of List I of the VII Schedule of the Constitution of India, by enacting the said Act, the Parliament has taken-over control over mines and minerals. Keeping in view the declaration made in that regard under Ss. 18 and 20 thereof, as envisaged in Entry 54 of List I of the VII Schedule of the Constitution of India, the 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, for the rules framed therein. Reference in this connection can be made to the decision of the Apex Court in Baijnath v. State of Bihar, AIR 1970 SC 1436 [LQ/SC/1969/305] 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 Ss. 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. No. 1 dated 1-1-2001, the amendments whereof have been upheld by this Court in K. Satyanarayna v. Govt. of Andhra Pradesh (Writ Petition No. 4198 of 2001 and batch disposed of today) (reported in 2001 (3) ALT 654 [LQ/TelHC/2001/459] ).

( 41 ) HOWEVER, the right to auction the sand within the jurisdiction of a Gram Panchayat, although, devolves in the District Level Committee constituted in that regard, but the land of the pattadars, would not come within the purview thereof.

( 40 ) IN the aforementioned situation, the other provisions of the said Rules will prevail. Rules 8 and 12 (2-A) of the said Rules are relevant, in the facts and circumstances of this case. Rule 8 states that the Lease Deed shall be executed in Form-G appended to the Rules. Rule 12 (2-A) of the Rules reads thus :"12. Grant of Lease : (1) (2) xxxxxxxxxxxx (2-A) Notwithstanding the order of preference contained in sub-rule (2), the landholders (pattadars) owning land not exceeding 2. 024 Hectares or 5 Acres shall be given preference for grant of small scale quarry lease in their patta lands;

( 42 ) BY reason of the aforementioned provisions therefor, the competent authority specified therein alone is entitled to deal with the sand deposited on the land of the pattadars, save and except the procedure which is required to be followed in terms of the said Rules. Neither the pattadars can claim a right to dispose of the sand deposited on their land by payment or royalty nor can any permit be granted in their favour automatically. All persons who intend to carry mining operation on any mineral are bound to follow the provisions contained in the said Rules. Whether a minor mineral deposited on the surface of the land would still be a mine and removal therefore would amount to any collection thereof or would amount to winning thereof fell for consideration before the apex Court in Tarkeshwar Sio Thakur Jiu v. B. D. Dey and Co. AIR 1979 SC 1669 [LQ/SC/1979/95] , wherein the Apex Court held :the contention must be repelled. The definitions of"mining operations" and "mine", noticed above, are very wide. The expression "winning of mineral" is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth. As pointed out by this Court in B. Dass v. State of Uttar Pradesh AIR 1976 SC 1393 [LQ/SC/1976/130] , it is wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth".

( 43 ) YET again, the Apex Court in Bhagwan Dass v. State of U. P. AIR 1976 SC 1393 [LQ/SC/1976/130] 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 (AIR 1951 Patna 525) wherein a Division Bench of the Patna High Court has referred to the earlier decisions in Kusum Kamini v. Jagdish Chandra (AIR 1941 Patna 13) and Purnendu Narain Singh v. Narendra Nath, AIR 1943 Patna 31 and held :"3. Upon these findings, it is clear to us that in accordance with the provisions of S. 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 domestic or agricultural purposes of the raiyat and his family. "

( 44 ) THE pattadars have no right as such over the minor mineral unless they obtain a permit is also absolutely clear from Rule 12 (2-A) of the Rules, which merely provide for grant of a preference to them in this regard. The said provision clearly goes to show that only in the event any auction is held, other things being equal, the pattadar will have a preference, but by necessary implication, it also mean that they do not derive any right thereover automatically. In any event, as noticed hereinbefore, in some of the cases, a dispute has been raised by the State that any sand is deposited on the land, and such a question cannot be gone into by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The competent authorities of the State must, therefore, take recourse to the law in terms of the provisions under the said Rules in respect of the sand, if any, deposited at the land of the pattadars.

( 45 ) THE deposit of sand on the land owners/pattadars land is an act of God, but, even by reason thereof, no right is vested in them, having regard to the provisions of the A. P. Estate Abolition Act. We are, therefore, of the view that no relief can be granted to the land owners/pattadars.

( 46 ) FOR the reason aforementioned, no relief can be granted in W. P. Nos. 22740 and 25644 of 2000, 1270, 4255, 4398, 4407, 3617, 3277, 3303, 3581, 3526, 4628 and 4639 of 2001 and they are accordingly dismissed. W. P. Nos. 4640 and 5405 of 2001 are disposed of with a direction to the respondents to consider the matter with regard to the exemption of ban orders on a rational basis keeping in view the observations made hereinabove and also the expert reports of the Ground Water Department in relation to the areas concerned. There shall be no order as to costs. Order accordingly.