Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P.(C) No. 6375 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Prasanta Kumar Das ..… Petitioner -Versus- State of Odisha and others ….. Opp. Parties For petitioner : M/s Sukanta Kumar Dalai and S. Mahapatra, Advocates For opp. parties : Mr. Asok Parija, Advocate General along with Mr. Kishore Mohanty, (O.P. Nos. 1 to 13) M/s. H.S. Mishra, Padmanav Sethy and R. Dash, Advocates (O.P. No. 17) M/s. Sanjay Das-2, Padmanav Sethy, T.K. Sahoo, Advocates (O.P.Nos. 18 & 19) Mr. S.P. Mishra, Sr. Advocate along with M/s. Soumya Mishra, A. Agarwal, R.K. Agarwal, M. Mishra and B. Behera, Advocates (O.P. No.20) Mr. P.K. Mohapatra, Advocate (For Intervener) // 2 // P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing and Judgment :: 06.02.2024 DR. B.R. SARANGI, ACJ. The petitioner has filed this writ petition in the nature of public interest litigation seeking following relief(s):- “It is most respectfully prayed that this Hon'ble Court may graciously be pleased to issue Rule Nisi calling upon the Opposite Parties to show cause as to why appropriate direction shall not be given to the Opposite Parties more especially Opposite Party No. 3 to 13to take prompt action to stop illegal mining by way of mechanized manner and to adopt guided and controlled method for transportation of sands and to cause an independent enquiry in relates to alleged the Opposite Party No.3 to 13 and to declare the present auction procedure as illegal, arbitrary and malafide and against larger public interest” illegal practice adopted by 2. The factual matrix of the case, in brief, is that the State authorities, while granting sand sairats on lease to different lessees by making public auctions for different periods, are allowing the lessees to operate the lease in violation of the terms and conditions of the lease deed executed between the parties. Though the lease conditions stipulate that the lessee has to operate the mining manually as far as practicable, but the lessees // 3 // are using the machinery in a mechanized manner for extraction of sand from the sand sairats, which is a great concern in the present writ petition. There is also unorganized movement of vehicles transporting the sand in the school and habitable areas in day time. Similarly, uncontrolled extraction of sand from the leasehold areas in a mechanized manner is not only causing threat to the environment but also causing threat to the river embankment affecting larger public interest. The petitioner has received information that the lessees, who have been allotted with sand sairats by the Tahasildars of the various Tahasils, are utilizing the machines to extract sand in their leasehold areas. That itself contravenes the conditions stipulated in the lease deed
Facts
executed between the parties. Aggrieved by such action, though the petitioner approached the authorities on several occasions, no action was taken, for which the petitioner has filed this writ petition in the nature of public interest litigation alleging inaction of the authorities and also bringing to the notice of this Court the violation of conditions stipulated in sand sairat lease deeds by the lessees. The lessees, while extracting sand, // 4 // are violating the conditions stipulated by the Pollution Control Board, more particularly, the provisions contained under Section 25 of the Air (PCP) Act, 1981. Inaction on the part of the authorities has occasioned rampant mis-utilization of the source and it so happened that the lessees are extracting more than the quantum allotted in their favour causing huge loss to the State exchequer. Earlier, one public interest litigation bearing WP(C) No. 35452 of 2022 had been filed and vide order dated 22.11.2022 this Court directed for consideration of the representation, but no action was taken by the opposite parties to curb such sand mafias. As a result thereof, such sand lessees are causing pollution to the environment and acting contrary to the provisions of law by extracting sand more than the quantity to be extracted in a mechanized manner, by which also they are causing loss of revenue to the State. Though sand sairats are leased out to augment revenue for the State to be utilized for the development of the public, such sairats having been mis-utilized, the State’s revenue is being siphoned to the so called land mafias causing hardship to the general public, due to uncontrolled // 5 // extraction of sand and movement of sand carrying vehicles as per their sweet will. Hence, this writ petition. 3.
Legal Reasoning
contended that there is no dispute that the State should utilize all its larges for the public, but that should be // 6 // done in the manner it is required to be done in accordance with law. But, without following the same, if any larges of the State is utilized detrimental to the interest of the public, the same should be curbed down. Attention of the Court has been drawn to the situation of Cuttack Town, so far as sand sairats of Kathajodi and Mahanadi are concerned. Though some instances are placed on record, it is contended that similar state of affairs is going on throughout the State. Therefore, stringent action has been sought for as against the erring officials, who are indulged in such type of activities and not discharging the responsibilities assigned to them, and also against the lessees, who are violating or exceeding the conditions of lease, so that they can be handled with care and no further mishandling of sources can be done by any of the lessees. It is further contended that unless those lessees are dealt with very strong hands, the sources cannot be preserved for the future generation. 4. Mr. Ashok Parija, learned Advocate General appearing for the State-opposite parties contended that // 7 // considering the gravity of the situation and looking at the policy framed by the Ministry of Forest and Environment of the Union of India and the consequential guidelines issued thereof, the Government has framed a fresh guidelines on 21.12.2023 and the same has been placed on record for consideration. He contended that adhering to the fresh policy, if leases are granted, then the grievance of the petitioner can be redressed. The Government is now very much serious about the issue relating pilferage of sand by the lessees who are extracting beyond the permissible limit. Therefore, the State has also decided to take necessary steps against the lessees, who are not adhering to the terms and conditions of the lease deed. However, so far as protection of the environment is concerned, it is also contended that the Environment Department will take care of the issue and necessary statutory permission has to be obtained by the lessees. The Government will also look into the issue, if any of the lessees contravenes the conditions of environmental clearance, and deal him/her in accordance with law. Thereby, it is contended that since a new policy has to be formulated for the entire // 8 // State and even though said policy will apply prospectively, but the lessees, who are already in operation and their term has not been over, will also be intimated about the said policy, so that they will adhere to the terms and conditions mentioned therein in addition to the terms and conditions already existed in the lease deed. 4.1 It is also further contended that if any of the lessees contravenes any of the conditions stipulated in the lease deed or in the policy of the Government, then, it shall be open to the petitioner to approach the appropriate forum alleging violation of such condition(s) by the lessee, so that the law will take its own course and the violator can be dealt with in accordance with law. 5. Mr. H.S. Mishra, learned counsel appearing for opposite party no. 17 vehemently contended that the petitioner has no locus standi to file this writ petition making bald allegations. Learned counsel also drew our attention to the prayer made in the writ petition and contended that the relief, which has been sought by the // 9 // petitioner, is no more subsisting after the new policy has been formulated, therefore, the writ petition has to be dismissed in limini by imposing cost. It is further contended that if the petitioner has got any grievance as against any of the lessees, he has other remedies available instead of filing the present public interest litigation before this Court. In any case, since the Government has formulated a new policy and new guidelines, certainly the same will be adhered to by the lessees and any contravention thereof will be taken care of by the authorities in accordance with law. 6. Mr. Sanjay Das-2, learned counsel appearing for the opposite parties no. 18 and 19 also accepted the argument advanced by Mr. H.S. Mishra, learned counsel for opposite party no.17, and contended that whatever principle will be laid down by this Court in the present proceeding that will be adhered to and in case of any violation that may be dealt with in accordance with law. 7. Mr. S.P. Mishra, learned Senior Counsel appearing for opposite party no.20 also accepted the contention advanced by Mr. H.S. Mishra, learned // 10 // counsel appearing for opposite party no.17, and contended that law provides that if there will be contravention of any of the conditions by the lessee, the same is to be dealt with in conformity with the provisions of law. If the Government framed a new policy, that will be adhered to by all the lessees. Meaning thereby, the lessees will definitely adhere to such conditions and in the event of any contravention thereof, action will be taken in accordance with law. 8. Mr. P.K. Mohapatra, learned counsel appearing for the intervener contended that the intervener has filed an application for intervention since he is a public spirited person and supports the case of the present petitioner. Even though intervention petition has not been allowed, learned counsel appearing for the intervener has been given opportunity of hearing in this case. 9. This Court heard Mr. S.K. Dalai, learned counsel appearing for the petitioner; Mr. A.K. Parija, learned Advocate General appearing along with Mr. Kishore Mohanty, learned Additional Standing Counsel // 11 // for the State-opposite parties no. 1 to 13; Mr. H.S. Mishra, learned counsel appearing for opposite party no. 17; Mr. Sanjay Das-2, learned counsel appearing for opposite party nos. 18 and 19; Mr. S.P. Mishra, learned Senior Advocate appearing along with Mr. A. Agrawal, learned counsel for opposite party no.20; and Mr. P.K. Mohapatra, learned counsel appearing for the intervener. With the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 10. On being noticed, all the parties have appeared. It is made clear that since this Court raised concern over the mechanized manner of extracting sand from the river bed, on 06.12.2023, Special Secretary to the Government in Steel & Mines Department directed all the Collectors to be vigilant and monitor regularly to curb illegal sand mining from river bed and see that the same shall be in consonance with the Odisha Sand Policy, 2021, which was issued by the Revenue & Disaster Management Department vide resolution No. 26723 dated 02.09.2021. Thereafter, a meeting regarding // 12 // the sand mining guidelines and policy was convened, on 18.12.2023, under the chairmanship of Chief Secretary, Government of Odisha. In the said meeting a decision was taken to formulate revised guidelines in supersession of the existing guidelines of Revenue & Disaster Management Department for implementation of the Odisha Sand Policy, 2021. Another meeting was held on 19.12.2023 under the chairmanship of Addl. Chief Secretary to Government, Steel and Mines Department to implement the decisions taken in the meeting held on 18.12.2023. Since the amended sand policy had not been effectively implemented at various places in the State, it was decided that revised guidelines may be issued to provide a procedural framework and modality for the implementation of the components of Odisha Sand Policy, 2021. The said guidelines are in accordance with the provisions of Sustainable Sand Management Guidelines, 2016; the Enforcement and Monitoring Guidelines for Sand Mining, 2020 and directives issued by the National Green Tribunal from time to time as well as the judgment of the apex Court relating to sand mining. The said revised guidelines were put up for // 13 // approval of the Minister, Steel & Mines Department on 21.12.2023 and the same was approved and published on 21.12.2023. Therefore, revised guidelines has been issued on 21.12.2023 in order to implement the sand policy, which was existing since 2021, and further to regulate sand mining activities for the betterment of the public at large and, as such, it is in accordance with the provisions of law. The same has also been issued by way of resolution dated 21.12.2023, wherein the entire mechanism has been prescribed. Under Clause-4(g) thereof, it has been prescribed that quarry operation shall be carried out strictly in accordance with the approved mining plan duly adhering to the provisions of Odisha Minor Mineral Concession Rules, 2016 and terms and conditions of respective statutory clearances and approvals. The mining plan shall be prepared by following the guidelines of MoEF & CC, Government of India, formulated in the Sustainable Sand Mining Guidelines, 2016 and the said guidelines prescribed standard environmental condition for sand mining at SI No. 19 which clearly envisages “Depending upon the location, thickness of sand, deposition, agricultural // 14 // land/riverbed, the method of mining may be manual, semi-mechanized or mechanized; however, manual method of mining shall be preferred over any other method. Thereby, it is contended that semi-mechanized and mechanized way of mining is permissible in the Sand Mining Guidelines, 2016. 11. Mr. Dalai, learned counsel appearing for the petitioner brings to the notice of this Court the Sustainable Sand Mining Management Guidelines, 2016, more particularly, Page-51 thereof, wherein under the heading “About river sand mining it says that” it has been provided as follows:- “(iii) No river sand mining project, with mine lease area less than 5 ha, may be considered for granting EC. The river sand mining projects with lease area more than equal to 5 ha but less than 25 ha will be categorized as 'B2'. In addition to the requirement of documents, as brought out above under sub-para (ii) above for appraisal, such projects will be considered subject following stipulations: the to (a) The mining activity shall be done manually. The depth of mining shall be restricted to 3 m /water level, whichever is less. (b) For carrying out mining in proximity to any bridge and / or embankment, appropriate safety zone shall be worked out on case to case basis to the satisfaction of SEAC / SEIAA, taking into account the structural parameters, locational aspects, flow rate etc., and no mining shall be carried out in the safety zone so // 15 // worked out. No in-stream mining shall be allowed. According to him, since mining activities in the riverbed has been prescribed to be done manually, if at all any river is leased out and the lessee is allowed to go for mechanized mining, then it will be in violation of the above condition and will cause further difficulty. Therefore, the very purpose of coming to this Court by filing this public interest litigation will become frustrated. 12. Taking into consideration the above clauses, it is made clear that so far as sand sources are concerned, mining activities “shall” be done manually. By using the word “shall” the mandatory provision has been made for river sand mining as “manually”. 13. In Mohan Singh v International Airport Authority of India, (1996) 10 JT 311: (1996) 8 Scale 251, the apex Court held that the word “shall” though prima facie gives impression of being mandatory character, it requires to be considered in the of light the intention of the legislature by carefully attending to the // 16 // scope of statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. 13.1. In Election Commission of India v. Subramanian Swamy, AIR 1996 SC 1810, while constructing Article 192 (2) of the Constitution of India, the apex Court held the use of expression “shall” in the provision indicates that the Governor is bound to take the opinion and act on such opinion of the Election Commission. 13.2. Interpreting Section 16 (1) of the West Bengal Premises Tenancy Act (12 of 1956) and Rule-4 of the West Bengal Tenancy Rules, in the case of Biswanath Poddar v. Archana Poddar, (2001) 8 SCC 187, the apex Court held that the use of word “shall” in Section 16 of the Act and Rules, indicates that the legislature intended the requirement of notice under Section 16 of the Act to be mandatory. 13.3. In Hemalatha Gargya v. C.I.T. (2003) 9 SCC 510, the apex Court held that the use of word “shall” in a // 17 // statute ordinarily means that the statutory provision is mandatory. 13.4. In State Inspector of Police v Surya Sankaram Karri, (2006) 7 SCC 172 while considering the proviso of Section 17 of the Prevention of Corruption Act (49 of 1988), the apex Court held that the expression “shall” in proviso of Section 17 of the Act makes the provision mandatory. 14. Taking into considering the use of word “shall” in the expression made, as discussed above, it implies a mandatory nature for river and sand mining as been prescribed to be done “manually”. 15. The purpose behind the river sand mining manually has some meaning to the extent that if the sand mining will be done manually, then some local people will get some job and the same will minimize the unemployment problem to some extent and further the quantum of sand which will be extracted manually, that will have its own effect and the river bed will not be damaged. It is true that rejuvenation of river bed may be required during the flood time, but still then the question // 18 // of semi mechanized or mechanized mining of sand will be detrimental to the interest of the public as well as the State Exchequer. More particularly, it will affect the future generation of the State, reason being if the resources, which are made available at present, are consumed during this generation, then future generation will face a lot of difficulties and that should be taken in mind while granting lease of the sand sairats to extract the sand in mechanized manner. Therefore, the State Government should be very careful, while permitting the lessees to go for semi-mechanized or mechanized manner of extracting sand, and should lay emphasis to go for manual sand mining which will be in the interest of the public at large. 16. Clause-19 although referred that the method of mining may be manual, semi mechanized or mechanized, but, however, manual method of mining should be preferred over other two methods. Therefore, exercise of the preference for operation of sand quarries in manual method will be definitely a better method than that of semi-mechanized or mechanized manner. // 19 // 17. An affidavit has been filed by the State Government indicating therein that in the event the Government decided to allow the lessees to go for semi- mechanized or mechanized mining operation, then mining plan clearance and environment clearance would be required to be obtained by the lessees. Thereby, some restrictions have been imposed for going for semi- mechanized or mechanized mining of sand quarries. As such, the purpose of approaching this Court by filing this writ application by the petitioner is justified. Needless to mention here that in case of contravention of any terms of the guidelines or any terms or conditions of the lease deed, it will be open to the petitioner or any other person of similar status to bring to the notice of the authority concerned to take appropriate action against the lessees indulged therein, but not in the shape of public interest litigation, as specific forums are available, so that the violators can be taken care of in accordance with law. 18. In view of such provision, it is made clear that to protect the livelihood of the human being as provided // 20 // under Article 21 of the Constitution, right to life being the basic concept to be taken care of, the State is to take necessary steps in that aspect. 19. Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one's personal autonomy, one's right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans. 19.1. In Chameli Singh v. State of Uttar
Arguments
Mr. S.K. Dalai, learned counsel appearing for the petitioner vehemently contended that in the State of Odisha auction of the sand queries, selection of lessees and extraction of sand in mechanized manner are all being done detrimental to the interest of the public at large. Consequentially, he prays for interference of this Court to make a uniform policy to be applicable to all the sand sairat holders of the State so that pilferage of sand by the lessees can be prevented and extraction of sand more than the quantity allotted can be avoided. 3.1 It is further contended that the movement of vehicles carrying sand during the school hour as well as office hour at day time, is causing immense difficulties for the general public. The same should be prevented and the lessees should not be allowed to have extraction of sand and movement thereof during day time, when traffic is in force. Apart from the same, it is further