Jharkhand High Court
(M/S. Mahadeo Enclave Pvt. Ltd. vs . The State Of Jharkhand & Ors.) on 17 August, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.2469 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.1089 of 2016
(Amarnath Tekriwal Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2470 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2471 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2472 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2473 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2474 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2475 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2476 of 2016
(M/s. Mahadeo Enclave Pvt. Ltd. Vs. The State of Jharkhand & Ors.)
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner(s) : M/s. Jitendra Shankar Singh & Sumeet Gadodia, Advocates For the State : A.C. to A.G.
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Order No.07 Date: 17.08.2018
1. These batch of writ petitions have been preferred for quashing the condition of respective agreements of the petitioners as well as public notice published in daily newspaper, namely, "Prabhat Khabar" on 07.04.2015, imposing a condition that the sand excavated from the Sand Ghats of the District Godda shall only be sold within the said District.
2. All these writ petitions involve common question of law and as such the same are being heard and disposed of by this common order. W.P.(C) No.2469 of 2016 is taken as a lead case with the consent of the learned counsel for the parties.
3. The petitioners herein have been allotted different Sand Ghats within the District of Godda, however in view of the condition imposed in the 2 public notice dated 07.04.2015 and in their agreement, they have been restricted to sell the sand within the District of Godda only.
4. The learned counsel for the petitioners submits that the impugned condition is violative of Articles 14, 19(1)(g) and 301 of the Constitution of India as they have been restricted from doing free trade and commerce throughout the territory of India. It is further submitted that similar restrictions were imposed in the year 2011 also. One Panchanand Choudhary challenging the said action of the authorities preferred a writ petition being W.P.(C) No. 170 of 2012 (Panchanand Choudhary Vs. The State of Jharkhand). A Bench of this Court allowed the writ petition and the said condition imposed by the authorities was declared illegal and arbitrary and the same was set aside. Aggrieved thereby, the State of Jharkhand preferred an appeal being L.P.A No.132 of 2013 (The State of Jharkhand through Deputy Commissioner, Godda Vs. Panchanand Choudhary), which was also dismissed and the order of the learned Single Judge was affirmed. The submission of the learned counsel for the petitioners is that their cases are squarely covered by the judgment passed by this court in W.P. (C) No.170 of 2012, which was also affirmed in L.P.A No.132 of 2013 and, thus, the present writ petition may also be allowed by quashing the impugned condition.
5. The learned counsel for the respondent submits that once the petitioners have accepted the terms of auction notice and participated in the auction process as well as subsequently executed the agreement, they cannot deny to abide by the same as per the principle of estoppel. It is further submitted that the said condition has been imposed to maintain ecological balance and to prevent excessive excavation of sand from rivers and also keeping in view the larger interest of the residents of the district. It is further submitted that the District of Godda is adjacent to the boundary of the districts of Banka and Bhagalpur falling in the State of Bihar and as such the sand mafias of the area used to take all possible steps for excessive excavation of sand from the river bed which results in ecological imbalance.
6. I have perused the judgment of the learned single Judge of this Court rendered in the case of Panchanand Choudhary (Supra). The issue involved in the said writ petition was that in the year 2011 the Deputy Commissioner, Godda by an executive order imposed similar condition 3 for allotment of Sand Ghats in the District of Godda which was challenged by one of the settlees namely Panchanand Choudhary. The learned Single Judge while deciding the said case observed as under:
"I have heard learned counsel for the parties at length and having gone through the relevant materials o record and judgments relied upon by the parties. On the face of it, the notice dated 14.06.2011 completely prohibiting transportation of sand beyond the District of Godda is arbitrary and also in violation of the Constitutional Provisions guaranteed under Part-III and under Article 301 of the Constitution of India as it prohibits free trade, commerce and intercourse within the territory of India. Petitioner is entitled to challenge if any of the provisions of the NIT which are in the teeth of the Constitutional Provision or fundamental rights under Part III of the Constitution as the fundamental rights are enshrined for the benefit of an individual and are enacted in public interest or on grounds of public policy. The aforesaid legal position has also been held by Hon'ble Supreme Court as reported in the case of Basheshar Nath Vs Commissioner of Income Tax Delhi & Rajasthan & Anr. (supra.). In that view of the matter such prohibitory conditions imposed by the respondents are not acceptable and the conditions imposing totally prohibition on the lifting and loading of sand from Godda to another place is wholly unsustainable in law."
7. The learned Division Bench of this Court vide order dated 18th June, 2013 also dismissed L.P.A No.132 of 2013 preferred by the respondent- State of Jharkhand against the order passed in W.P.(C) No.170 of 2012. The relevant part of the said order is quoted hereinunder:
"The learned Single Judge has considered various judgments of the Hon'ble Supreme Court and thereafter reached to the conclusion that part of the condition which prohibits free trade, commerce and intercourse within the territory of India is violative of Article 301 of the Constitution of India. So far as other conditions are concerned, the learned Single Judge directed the State authorities to look into the same by ensuring reasonable balance in the use of machinery and that of manual labourer in excavation of sand so as to protect the interest of the local labourer. This finding given by the learned Single Judge has not been challenged by either of the parties.
Be that as it may, regarding the issue which has been challenged by the appellant-State, we are of the considered opinion that learned Single Judge had considered all aspects of the matter in detail and we are in full agreement with the view expressed by the learned Single Judge. We do not find any merit in the L.P.A."
8. Article 301 of the Constitution of India provides that subject to the other provisions of Part XIII, the trade, commerce and intercourse throughout the territory of India shall be free. Further, Article 304 provides for the restrictions that can be imposed by the legislature of a State on trade, commerce and intercourse among States. Clause (b) of Article 304 provides that notwithstanding anything in Article 301 or Article 303, the legislature of a State may by law, impose such reasonable restrictions on the freedom of trade, commerce or 4 intercourse with or within that State as may be required in the public interest. However, no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. It is, thus, clear that before imposing any restriction on the trade, commerce and intercourse on the ground of public interest, there must be a law framed by the State legislature, which is to be introduced or moved after the previous sanction of the President.
9. In the case of State of Bihar and Ors. Vs. Harihar Prasad Debuka, reported in (1989) 2 SCC 192, the Hon'ble Supreme Court of India has held as under:
"16. In Indian Cement v. State of A. P., AIR 1988 SC 567 it was held that the restriction provided for in Art. 301 can within the ambit be limited by law made by the Parliament and the State legislature and that no power is vested in the executive authority to act in any manner which affects or hinders the essence and thesis contained in the scheme of Part XIII of the Constitution which is against creation of economic barriers and/or pockets which would stand against the free flow of trade, commerce and intercourse."
10. It is not the case of the respondents that any law has been framed by the legislature of Jharkhand after following the procedure prescribed under Article 304 of the Constitution of India so as to restrict the transportation of Sand for the District of Godda only, rather it appears that the impugned letter has been issued on the basis of the direction of the Deputy Commissioner, Godda in exercise of its executive power. It is well-settled that where a statute requires doing a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. The argument of the learned counsel for the respondents that the rule of estoppel will operate in the case of the petitioners has no substance as all conditions imposed by executive orders dehors the provisions of the Constitution of India are nonest in the eye of law. Moreover, the rule of fairness is the basic principle which is also required to be followed by the administrative authorities while dealing with any private individual.
11. In view of the aforesaid discussions, I am of the considered view that the impugned condition imposing restriction to transport and sell the sand only within the District of Godda as has been imposed by way of public notice dated 07.4.2015 and in the respective agreements of the petitioners is illegal and without jurisdiction and as such the same is hereby quashed. So far the allegations against the petitioners that they 5 have connived with sand mafias in doing excessive excavation of sand, the district administration has ample power to check the said activity in accordance with law.
12. These writ petitions are accordingly allowed.
(Rajesh Shankar, J.) Sanjay/AFR