Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1148 (MP)

M. P. S. BUILDCON v. STATE OF M. P.

2020-10-20

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

body2020
ORDER/JUDGMENT – Shri Ravi Chaudhary, learned counsel for petitioner. Shri Ankur Mody, learned Additional Advocate General for the respondent/State Learned counsel for the rival parties are heard through video conferencing. The present petition filed under Article 226 and 227 of the Constitution assails Annexure-P/1 dated 2-7-2020 by which licence for storage of minor mineral sand granted to petitioner by order dated 25-6-2020 vide P/6 by the Collector, Gwalior, has been cancelled by the same authority for the reason that licence was granted without approval of the State Government as mandated by the execution instructions issued by Government dated 12-9-2019, vide P/8. 2. Undoubtedly an appeal lies to the Divisional Revenue Commissioner under Rule 22 of the Madhya Pradesh Sand (Mining, Transportation, Storage and Trading) Rules, 2019 (for brevity 2019 Rules), but learned counsel for petitioner submits that since the impugned order has been passed without affording opportunity of being heard and in clear misinterpretation and misreading of the subsequent instructions issued by the Government dated 3-6-2020, P/9 this Court can very well exercise writ jurisdiction to adjudicate the matter. 2.1 Though objection as regards non-availing of alternative statutory remedy under Rule 22 of 2019 Rules is raised but since the impugned order primarily has been passed in violation of principle of natural justice (audi alteram partem) and adjudication of the issue is more legal than factual, this Court proceeds to decide this matter on merits. 2.2 A little factual background of mining of sand is necessary to be mentioned to appreciate the issue involved herein. 2.3 Due to clashes in the State of Madhya Pradesh where sand mining was done under the Madhya Pradesh Minor Mineral Rules, 1996 (for brevity 1996 Rules), the Government experienced widespread illegal mining and storage of sand. The State experienced that 1996 Rules which inter alia governed the subject of storage of mining of sand were inadequate to remedy the vice of illegal mining and its adverse affect to the environment. Cases were filed in National Green Tribunal, New Delhi (NGT) raising causes of adverse affect over the environment due to rampant illegal mining and storage. To resolve the situation, the State framed 2019 Rules which came into effect from 30-8-2019 and repealed all the rules and instructions pertaining to storage of sand. Cases were filed in National Green Tribunal, New Delhi (NGT) raising causes of adverse affect over the environment due to rampant illegal mining and storage. To resolve the situation, the State framed 2019 Rules which came into effect from 30-8-2019 and repealed all the rules and instructions pertaining to storage of sand. The NGT, while taking up the environmental issue arising out of illegal mining of sand in O.A. 17/19 directed on 26-11-2019, that no licence for storage of sand would be issued within 5 km of river, reservoir and water-source. 2.4 During pendency of the issue before the NGT, the State after coming into force 2019 Rules placed restriction on the power of Collectors/District Mining Officers to the extent of making prior approval of the State mandatory for issuance of licence for storage of sand vide letter dated 12-9-2019 P/8. 2.5 Accordingly when the aforesaid restriction of prior approval of the State as a pre-requisite for grant of licence for storage of sand was in operation, petitioner applied for licence vide application dated 18-3-2020 under the 2019 Rules. Petitioner completed pre-requisites/formalities under the law for grant of licence. When licence was not issued, the petitioner approached this Court in W. P. No. 7880/2020 which was disposed of in limine by order dated 8-6-2020 by directing the competent authority to decide the issue of grant within 15 days. 2.6 Meanwhile, the NGT by order dated 26-11-2019 in O.A.17/19 decided that no licence for storage of sand would be issued within 5 km of any river, reservoir and water-source. Meaning thereby that licence could be issued more than 5 km of river, reservoir and water-source. 2.7 After the matter was decided by the NGT as aforesaid, the State issued instructions to Collectors of all the Districts on 3-6-2020, P/9 directing in terms of the order of the NGT dated 26-11-2019 and invoking the provisions of Rule 25 of 2019 Rules that storage of sand could be made only at places more than 5 km but within 8 km of river, reservoir and water-source. 2.8 The aforesaid instructions dated 3-6-2020 P/9 as submitted by learned counsel for the petitioner amounts to impliedly lifting restriction imposed by the State on 12-9-2019, P/8. 2.8 The aforesaid instructions dated 3-6-2020 P/9 as submitted by learned counsel for the petitioner amounts to impliedly lifting restriction imposed by the State on 12-9-2019, P/8. 2.9 However, per contra, learned Additional Advocate General for the State submits that by instructions dated 3-6-2020, P/9 it cannot be inferred or implied that condition of prior approval of State for grant of licence imposed on 12-9-2019, P/8 was lifted. It is submitted by learned AAG that lifting of this condition was in fact done as late as on 6-7-2020 R-1 (along with the Return) and therefore the licence which was granted to petitioner by P/6 dated 25-6-2020 before withdrawal of the earlier condition dated 12-9-2019, was rightly cancelled by the impugned order, P/1 dated 2-7-2020. 3. The only question that falls for consideration before this Court is as to whether condition of prior approval of the State for grant of licence for storage of sand imposed by the instructions dated 12-9-2019 P/8 could be treated to be lifted by the instructions dated 3-6-2020 of the State vide P/9 or by the instructions dated 6-7-2020 R-1 ?. 3.1 During the course of arguments, this Court had put a categorical question to the learned Additional Advocate General as to whether petitioner was required to satisfy any other pre-requisite prescribed by law for grant of licence for storage of sand in his favour on 25-6-2020, in response to which learned AAG revealed that certain procedures for implementation of R. 18 of 2019 Rules by way of e-control are to be put in place. However, Shri Mody learned Additional Advocate General did not dispute that all other legal formalities for grant of storage licence had been completed by petitioner before issuance of licence on 25-6-2020. 3.2 For answering the moot question one has to carefully read Annexure-P/9 which is instructions issued by the Government to Collector of all the Districts of M. P. directing Collectors that henceforth licence be issued after keeping in mind the restrictions imposed by the Government that issuance of licence for storage of sand be made within 5 km but not more than 8 km of river, reservoir and water-source. This instructions dated 3-6-2020, P/9 clearly state by ensuring fulfillment of the above condition. As such Collectors are directed to issue licence for storage of sand within the parameters of limit fixed by P/9. This instructions dated 3-6-2020, P/9 clearly state by ensuring fulfillment of the above condition. As such Collectors are directed to issue licence for storage of sand within the parameters of limit fixed by P/9. 3.3 In the considered opinion of this Court, this letter of the State Government dated 3-6-2020 P/9 has impliedly superseded the earlier instructions dated 12-9-2019 thereby lifting the pre-condition of prior approval of State Government for Collectors to issue licence for storage of sand. 3.4 As regards Annexure-R/1 relied upon by the State dated 6-7-2020 though the said instructions of the Government expressly refer to the earlier instructions dated 12-9-2019 and state that prohibition imposed against storage of sand in districts Bhopal, Indore, Jabalpur, Gwalior is recalled, but the said instructions dated 6-7-2020 do not categorically cancel the order dated 12-9-2019. This instruction dated 6-7-2020 in the 1st paragraph refers to the object of the letter which is to create effective mechanism to control and renders the entire process from the stage of mining to the sale of sand more feasible and viable. This letter also refers to the licence of storage of sand under 2019 Rules. This letter in fact primarily and predominantly deals with the subject of exercise of control over the process of implementation of Rule 18 of 2019 Rules which relates to storage of sand. Therefore, the letter dated 6-7-2020 which is relied upon by the State relates to the subject of effective implementation of the provisions of Rule 18 of 2019 Rules. 4. In view of above discussion this Court has no hesitation to hold that requirement of obtaining prior permission of the State for grant of licence for storage of sand by the Collector vide P/8 was impliedly lifted by the instructions of the State dated 3-6-2020 P/9. Since the petitioner has been granted licence on 25-6-2020 which is subsequent to the said lifting of the restriction, the licence so issued could not have been cancelled by the impugned order dated 2-7-2020 P/1 on the pretext of absence of prior approval of the State Government. 5. In the conspectus of the above discussions, the impugned order dated 2-7-2020 P/1 deserves to be interfered with. 6. Accordingly, the petition stands allowed to the extent indicated below : – (1) The impugned order dated 2-7-2020 P/1 is quashed by issuance of writ of certiorari. 5. In the conspectus of the above discussions, the impugned order dated 2-7-2020 P/1 deserves to be interfered with. 6. Accordingly, the petition stands allowed to the extent indicated below : – (1) The impugned order dated 2-7-2020 P/1 is quashed by issuance of writ of certiorari. (2) Respondent No. 2-Collector Gwalior is directed to proceed with the matter in accordance with law by treating the impugned order P/1 dated 2-7-2020 as nonexistent. No cost.