Jammu & Kashmir High Court
M/S New B. N. Stone Crusher vs Union Territory Of Jammu And on 1 May, 2024
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 1370/2021(O&M)
Reserved on: 20.04.2024
Pronounced on: 01.05.2024
1. M/s New B. N. Stone Crusher .....Appellant(s)/Petitioner(s)
th. its Proprietor Sh. Badrinath
S/o. Sh. Garib Das R/o. 28/5,
Trikuta Nagar, Jammu, Age
43 years
2. M/s New Oriental Stone
Crusher th. its Proprietor Sh.
Lal Chand S/o. Sh. Chatru
Ram, R/o. Raipur Satwari,
Jammu Age 60 years
3. M/s Oriental Stone Crusher
th. its Proprietor Sh. Lal
Chand S/o. Sh. Chatru Ram
R/o. Raipur Satwari, Jammu
Age 60 years
4. M/s Hanuman Stone Crusher
th. its Proprietor Sh.
Sumeshwar Rampal S/o. Sh.
Shambhu Nath R/o. Vill.
Makhra Tehsil Mandal
District Jammu Age 52 years
5. M/s J. K. Stone Crusher th. its
Proprietor Sh. Virander
Gupta, S/o. Sh. Banarsi
Gupta, R/o. Village Gaseetpur
Distt. Jammu, Age 43 years
6. M/s Shiva Stone Crusher th.
its Proprietor Sh. Sunil Bharti
S/o. Sh Devi Dayal R/o.
Bohra Chak Pallan Mandal
Distt. Jammu, Age 43 years.
7. M/s Khushi Stone Crusher th.
its Proprietor Sh. Sunny
Gupta S/o. Sh. Vijay Kumar
Gupta, R/o. 68/A, Shastri
Nagar, Jammu Age 46 years
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WP(C) No. 1370/2021
8. M/s Trikuta Stone Crusher th
its Proprietor Sh.Sudagar
Singh R/o. Channi Nanak,
Distirct. Jammu Age 45 years
9. M/s Swastik Stone Crusher th
its Proprietor Sh. Vijay
Sharma S/o. Sh. Yashpal
Sharma, R/o. Village Chak
Ganeshu Distt. Jammu, Age
43 years.
10. M/s Upkar Stone Crusher th
its Proprietor Sh. Charan
Singh Choudhary S/o. Late
Sh. Tej Ram R/o. 216, Channi
Himmat, Jammu Age 60 years
11. M/s Tawi Stone Crusher th its
Proprietor Sh. Parveen Dev
Choudhary S/o. Sh. Madan
Lal Choudhary R/o. Village
LalyalSimbal Camp Distt.
Jammu Age 48 years
12. M/s Choudhary Stone
Crusher th its Proprietor Sh.
Vikram Randhawa S/o.
Choudhary Piara Singh R/o.
Village Chak Ganeshu Distt.
Jammu Age 48 years
13. M/s Adarsh Stone Crusher th
its Proprietor Sh. Sonam Deep
Singh S/o. Late S. Parminder
Singh R/o. Village Khandal,
Tehsil and District Jammu
Age 46 years
Through: Mr. Parag Sharma, Adv.
vs
1. Union Territory of Jammu and ..... Respondent(s)
Kashmir through its
Commissioner/Secretary, General
Administration Department, Civil
Secretariat, Srinagar.
2. Additional Deputy Commissioner
(Law and Order), Jammu
3. Superintendent of Police,
3
WP(C) No. 1370/2021
Headquarter, Jammu
4. Assistant Conservator of Forest,
Jammu
5. District Mineral Officer, Jammu
(Geology and Mining Department)
6. Station House Officer, Police
Station, Domana,
7. Station House Officer Police
Station Satwari, Jammu
Through: Mr. K. D. S. Kotwal, Dy.AG
Coram: HON'BLE MR. JUSTICE RAJNESH
Mr. Adarsh Bhagat, GA
OSWAL, for R 1
JUDGE
JUDGMENT
1. The petitioners claim to be involved in the business of stone crushing under the valid permission granted by the authorities concerned and are aggrieved of the Government order bearing No. 1018-JK (GAD) of 2020 dated 29.10.2020, whereby the respondent No. 1 has accorded sanction to the constitution of a Special Task Force to check the menace of illegal extraction of sand and other minor minerals from the bank of River Tawi and its tributaries. It is urged by the petitioners that the order impugned has been issued by the incompetent person having no authority under the Mines and Minerals (Development and Regulation) Act, 1957 (for short, "the Act of 1957") read with SRO 105 dated 31.03.2016 known as the J&K Mines Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016, to constitute the Special Task Force.
2. It is stated that the Act of 1957 prescribes the procedure for regulation of the operation of stone crushers and also there are the authorities under the 4 WP(C) No. 1370/2021 Act of 1957 to search the premises and impose the penalties. Further, under Section 15 read with Section 23(C) of the Act (supra), the powers have been vested with the State Government to make Rules for preventing illegal mining, transportation and storage of minerals and the Government in exercise of such power, has issued SRO 105 and under the said SRO, the officers of the Geology and Mining Department have been vested with the powers to exercise their jurisdiction under Sections 21, 22, 23 (a) and 23 (b) of Mines and Minerals (Development and Regulation) Act, 1957. Once under the Special Act, the powers have been conferred upon the officers of Department of Geology and Mining Department to prevent illegal mining, transportation and storage of minerals, the respondent No. 1 could not have constituted the Special Task Force. Through the medium of the present petition, the petitioners have sought the following reliefs:
(i) Writ of certiorari thereby quashing the impugned order No. 1018-
JK(GAD) of 2020 dated 29.10.2020 issued by respondent No. 1.
(ii) Writ of mandamus directing and commanding the respondents No. 6 and 7 to adhere to the provisions of Indian Penal Code before taking the cognizance of the offences as is done in other criminal cases and not under the provision of Mines and Minerals (Development and Regulation) Act, 1957 read with Rules until and unless authorized by the Authorities under the said Act.
3. The petitioners have placed on record the certain FIRs and the orders imposing penalty upon the petitioners.
5WP(C) No. 1370/2021
4. The respondents have filed the response stating therein that the Government order No. 1018-JK(GAD of 2020 (supra) was issued by the respondent No. 1 in compliance to the observations/directions of the Division Bench of this Court in WPPIL No. 07/2014, titled, „Dewakar Sharma and others vs State of J&K and others‟, to check the menace of illegal extraction of sand and other minor minerals from the banks of River Tawi and its tributaries.
5. Mr. Parag Sharma, learned counsel for the petitioners has vehemently argued that respondent No. 1 has issued the order impugned without any competence, as only the authorities under the relevant Rules, have the jurisdiction to prevent the illegal extraction, transportation and storage of minor minerals. He further argued that in case of any violation, the respondent Nos. 6 and 7 are required to take action under IPC only and not under the Act of 1957 until or unless the authorities under the Act or Rules request to do so.
6. On the contrary, Mr. K. D .S. Kotwal, learned Dy.AG appearing for the respondents has vehemently argued that the order impugned has been issued pursuant to directions and observations made by the Hon‟ble Division Bench in the case of Dewakar Sharma (supra), to check the menace of illegal extraction of sand and minor minerals from the banks of River Tawi and its tributaries. He has further argued that the writ petition has been filed in anticipation of any action to be taken by the respondents in future and rather the petitioners can raise their grievance only if the action, otherwise that in accordance with law, is taken against them. 6 WP(C) No. 1370/2021
7. Heard and perused the record.
8. In the present writ petition, neither any FIR nor any order imposing penalty has been impugned by the petitioners. Order dated 29.10.2020 (supra) has been issued by the respondent No.1 to check the menace of illegal extraction of sand and minor minerals from the banks of River Tawi and its tributaries. The aforesaid order was issued by the respondent No.1 after taking note of the observations made by the Division Bench of this Court in its order dated 17.08.2020 passed in Public Interest Litigation. The respondents are seeking issuance of writ of certiorari for quashing the order impugned, which in fact, has been issued in public interest, after the Division Bench of this Court showed its serious concern in respect of illegal extraction of sand and minor minerals from the River Tawi and its tributaries and observed that the issue of illegal extraction of sand and other minor minerals is an important issue and critical to the lives of the residents of the Jammu and also for the preservation of environment and the river. The order impugned has been issued in public interest and it is not understandable as to how the petitioners are affected by the constitution of the Special Task Force by respondent No. 1 to check the menace of illegal extraction of sand and other minor minerals from the banks of River Tawi and its tributaries. The petitioners on their part can adhere to and comply the relevant laws/rules during the course their business, thereby not affording any chance to the respondents to proceed against them. If the respondents commit any violation under the Act of 1957 and the rules while proceeding against the petitioners, the 7 WP(C) No. 1370/2021 petitioners can approach this Court in respect of the alleged illegal act on the part of the respondents but on mere apprehension and anticipation, they cannot come to Court and say that the respondents are going to violate the Act in future while proceeding against the petitioners. In this context, it would be apt to take note of the decision of the Apex Court in Manish S. Pardasani v. State Excise, (2019) 2 SCC 660, wherein it has been held as under:
"67. This stage in this case is yet to arrive. The High Court should not have, therefore, pre-empted the passing of any order of the appellate authority, while deciding the writ petition. It is a settled law that the Court can stay or quash only those orders, which are impugned in the lis before it. A fortiori, the Court cannot stay or/and quash the orders in anticipation, before they are passed. We cannot, therefore, uphold such writ/directions issued by the High Court."
(emphasis added)
9. In fact, the claim projected by the petitioners in the present writ petition is akin to a situation where prospective violator of law before committing any violation of law, knocks the door of the Court that in the event of his committing any violation of law, he be not proceeded against under a particular statue but some other statute. The whole cause projected by the petitioners is imaginary and in respect of something to happen in future. In fact, the learned counsel for the respondents is right in his submissions that the writ petition has been filed in anticipation and this Court is also of the considered view that until and unless any provision of the Act of 1957 is violated by the respondents, the petitioners cannot approach this Court in anticipation. No general directions can be issued to the Police to proceed in a particular manner and rather the petitioners can 8 WP(C) No. 1370/2021 approach the Court in case the respondents proceed against the petitioners otherwise than in accordance with law.
10. This petition has been filed with ulterior motive and deserves to be dismissed with costs, however, taking a lenient view of the matter, the same is dismissed without any order as to costs.
(RAJNESH OSWAL) JUDGE JAMMU 01.05.2024 Rakesh PS Whether the order is speaking: Yes Whether the order is reportable: Yes KARAM CHAND 2024.05.01 13:54 I attest to the accuracy and integrity of this document