D SRINIVASA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Both the Writ Petitions can be disposed of by a common judgment.

(2.) In these Writ Petitions, the constitutional validity of G.O.Ms.No.71 issued by the Government, Panchayat Raj and Rural Development (PTS-III), dated 29-6-2000 framing the rules called A.P. Panchayat Raj (Auction of Sand in the Water Courses vesting in Gram Panchayat) Rules, 2000 (hereinafter called the "Auction Rules" for short) is assailed with consequential challenge to the auction notifications issued in pursuance of the said G.O. The Rules stipulated the method and manner of auction of sand. The notifications were issued for auctioning various sand quarries in pursuance of the G.O.Ms. No.71. It is the prime contention of the petitioners that impugned G.O.Ms. No.71 is incompetent and ultra vires the Constitution and the provisions of the A.P. Panchayat Raj Act, 1994. It is further stated that even the Rules framed under G.O.Ms. No. 71 are illegal and offending Articles 14 and 21 of the Constitution of India. Since the main thrust of argument was on the constitutional validity of G.O.Ms. No.71, the learned Counsel for the petitioners and the learned Additional Advocate General argued the matter at length on this point. Therefore, it is necessary to consider this point before going into the other submissions made by the learned Counsel for the petitioners.

(3.) Mr. P.S.Narayana, the learned Counsel appearing for the petitioners submits that the sand falls under mineral and the Legislative field is exclusively occupied by Union Government and it is governed by the Central Act namely The Mines and Minerals (Regulation and Development) Act, 1957. The sand is a minor mineral as per the classification made in the said Central Act. As far as the major minerals are concerned, the Rules are framed by the Central Government, however, in respect of the minor minerals, which includes sand, the State Government was empowered to frame the Rules under Section 15 of the Act. Therefore, he submits that the State Government is only a delegate for working out the functioning of minor minerals. The State Government is authorised to frame the Rules in that regard, the method and manner of identifying the minerals, grant of lease, method of granting lease and other connected matters. Thus, the sand quarry is fully occupied by the Union List under Entry 33 List-I of Schedule-VII of Constitution of India. What was delegated to the State Government was only a rule making power and beyond that it has no power to regulate the mines. Under the Rule making power, the State Government through the Department of Mines and Geology framed rules called A.P. Minor Mineral Concession Rules, in G.O.Ms. No.1172, dated 4-9-1967, by virtue of the powers vested in the State Government under Section 15 of the Central Act. The leasing out and the auctioning out of sand was being regulated by the Industries and Commerce Department under the A.P. Minor Mineral Concession Rules, 1966. Rule 9 of the said Rules contained various provisions for auctioning of sand quarries and lease agreements etc. Appeal and revision are also provided under the said Rules. The procedure of conducting auction of sand quarries was being issued from time to time on the basis of the policy issued by the Government. Various clauses of Rule 9 were amended We are not concerned with all the amendments of notification in G.O.Ms.No.417, dated 1-12-1998. After Rule 9-V, Rule 9-W was added by which all the areas other than Krishna and Godavari Rivers having potential sand bearing areas can be leased out by the respective Gram Panchayats, Municipalities, Municipal Corporations, notified areas. As per the procedure laid down by the Panchayat Raj Department and Municipal Administration Department and the procedure has been prescribed under G.O.Ms.No. 71 of Panchayat Raj Department dated; 29-2-2000. The learned Counsel for the petitioners submits that the power of leasing out and auction of the quarries by the respective Gram Panchayats, Municipalities etc., itself is illegal and contrary to law. The Gram Panchayats or Municipalities have no power to leasing out quarries. Admittedly the sand is a Minor Mineral and is to be regulated under the Rules framed under Section 15 of Central Act by the State Government and in fact the. State Government had framed the Rules called A.P. Minor and Mineral Concession Rules. Therefore, the Government have no power to sub-delegate the said power to Municipalities and the Panchayat Raj Department and therefore, the exercise of power in G.O.Ms.No.71 is illegal and contrary to law. He further submits that the G.O.Ms.No.71 was issued in exercise of the powers conferred under Clauses 11,12, and 22 of Section 268 read with Section 95 of the Panchayat Raj Act and therefore, under those provisions, the power of leasing out of quarries is not available. Therefore, the very notification G.O.Ms.No.71 is ultra vires powers under the provisions of Panchayat Raj Act. He relies on the following decisions of the Supreme Court: Ramesh Birch vs. Union of India Chandra Bali Prasad vs. Rex. V.M. Sanjanwala vs. The State of Bombay. M/s. Bishamber Dayal Chandra Mohan vs. State of U.P. B. Shama Rao vs. Union Territory. D.K.Trivedi & Sons vs. State of Gujarat.